ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005246
Parties:
| Complainant | Respondent |
Anonymised Parties | An Executive Chairman | A Charity |
Representatives | Ms Deirdre O Callaghan, B.L. instructed by Rachel O'Toole Solicitors | Mr Stephen O Donoghue, B.L. instructed Flynn Exams Solicitors |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00007218-001 | 27/09/2016 |
Date of Adjudication Hearing: 27 June ,14, 15 September and 27,28 November 2017.
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant in this case worked continuously from April 1,1992 to 27 November, 2015.He worked as CEO up until March 2015 when he assumed the role of Executive Chairman. The Complainant is claiming Constructive Dismissal. The Respondent is a Charity and had rejected the the claim. On the first day of hearing a question arose on time limits. The Claim was received by the WRC on 27 September 2016. I will address this as a Preliminary issue. |
Summary of Complainant’s Case:
Preliminary Argument: Counsel for the Complainant outlined the background to the Complainants application for Constructive Dismissal. The Claim was received by the WRC at 16.25 hrs on 27 September 2016 and referred to circumstances of the complainant’s involuntary termination of employment dated 27 November 2015. Counsel for the complainant submitted that the Solicitor in the case had received instructions to advance a claim for constructive dismissal on 22 October, 2015.An online application was filed on 29 January 2016 with a supporting letter completed by dictation. On March 2, 2016, The WRC wrote to the Solicitors office indicating that an application had not been received. This communication was then mislaid at the office only to be retrieved through file review on September 26,2016. The Complainants subsequently made an application for an extension of the statutory time limits on reasonable cause. Counsel made an extensive argument in support of granting the extension of time as the error was not of the complainants own making and he should not lose out on his requested hearing .She submitted that the erroneous misfiling was a justifiable excuse and it was a once off occurrence set against the backdrop of the Solicitors genuine believe that the application had been sent .She argued that she had demonstrated an arguable case and that she did not have to demonstrate that it was a winning case . Extensive Case Law was opened to the hearing. ADJ -00003010 Where Reasonable cause was granted following the submission of medical reports. DWT 0425 Cementation Skanska v A Worker where Reasonable cause was granted based on the worker’s belief that the Employer would honour a Labour Court Recommendation. ADJ -00005326 where reasonable cause was granted following submissions raised on Labour Court precedent. Substantive Case: Counsel for the complainant submitted that the complainant had been constructively dismissed. His experience at work was unbearable and he had no alternative but to leave. Despite his Founder member status, the complainant did not secure clarity on his role post CEO. He understood that he was to chair both Board and Management meetings and cracks developed in how his role was to dovetail with the new CEO. Difference in interpretation which arose led to him being undermined. He had been requested to remain on by The Board in April 2015 and while the Management Consultant became involved, there was no note on the resolution reached between the complainant and the incumbent CEO. At the end of the day, the Respondent had a duty towards the complainant as an employee to provide a safe system of work. The Board was obliged under law to uphold this. She submitted that the Deputy CEO had confirmed that the Board had not done enough to address the tensions between the parties. There was no vigilance during the transitionary period. The contract was not completed. The Complainant did raise a Grievance in 2015 Counsel dismissed the reference to the complainants controlling practices as a smokescreen. The Complainant was 69 years old at the time of his termination of employment, which did not place him in a favourable rehiring mode. Complainants Evidence: The Complainant commenced as a Volunteer in 1986. The service was incorporated as a company in 1989.He became an employee in 1992 and worked tirelessly as CEO over a sometime 50-60-hour week to build what had started as a Senior Citizens forum to the extensive facility it is today. There were 85 employees and 100 volunteers. He was paid €101,000 in his role as CEO. From 2013, he began to formulate a plan with the Board of the Respondent to step back from his full-time role as CEO to a part time position. In 2014 an Advisory Board was set up to address the succession plan. The Respondent set about the task of recruiting a replacement CEO. There were 26 applications for the role of CEO and the successful candidate, Ms A commenced in March, 2015 and, worked with him over a four-day period before the complainant had a 5-week absence due to illness. Ms A had worked there previously and he was pleased with her appointment. He returned during the first week of April and assumed the role of Executive Chairman on a 20 hr week basis in return for €800 gross per week. This was by verbal agreement and he was not provided with a contract of employment. He observed that Ms A had adopted a changed attitude towards him and she threatened to walk out if he attended to chair Management Meetings. He began to feel excluded. Two Board members had engaged with him and challenged him on whether “Anybody would be good enough for him?” The Complainant had a clear understanding that he was to hold the role of Executive Chair for up to a 2-year period to oversee the organisation and help with the changes and manage projects until the newly appointed CEO got up and running The Complainant submitted that he wasn’t able for the grief of feeling edged out. He was troubled by the lack of clarity in his revised role and the uncertainty regarding how he was to be paid. He told the Board in May that he would not be going forward for the position of executive Chair in May 2015.He was approached by the Board to reconsider a stay on until after the Summer. He received a letter dated April 30 from all but two of the Respondent Board Members “……To lose your leadership and energy would be a terrible blow to the Organisation. We ask you to reconsider ……. we request that you agree to defer decisions on your role as Chairman and future function and that you take a much-deserved leave of absence until August or September board meetings with a final decision to be made in the October meeting ……. But with our heads and hearts we ask that you maintain your ties until all issues can be resolved positively “ He was elected to the role in May 2015. The Board commissioned an Independent HR Practitioner to assist with the Change Management Agenda. The Complainant contended that he should be permitted to attend both Management Meetings. He met with the HR professional and on July 9, confirmed that he had resolved issues regarding his attendance at Managers Meetings with Ms A, the newly appointed CEO. He understood that he was free to attend any meeting he chose. The Complainant qualified this by stating that he believed that he was continuously excluded and campaigned against by Ms A and certain board members. The July Letter outlined two options concerning the complainant for the Respondent Board: 1.The Dual roles of Voluntary and salary status be put to the Housing Agency for approval 2. Appoint an alternative Chairperson He had made efforts to resolve his contract issue, tenure and method of payment through contact with the Respondent Solicitors. He submitted two letters dated February 2015 and July 2015 which addressed the Succession Planning and Corporate Governance agenda. The February letter advised that there should be a distinction between the complainant’s role as an unpaid Chairman of a Voluntary Board of Directors and his new paid role as Strategic coordinator of the Company, which should in turn be incorporated into a contract and job description.
The Complainant continued to experience difficulties and brought this up at two meetings following this. He recalled that Ms A came to his office on October 19,2015 and told him to stop opposing her. She sought his co-operation and implied that in the absence of this co-operation, she “would tell the Board everything “ He received an email from Ms A on October 20 which moved the goalpost. He was informed that he was permitted to attend a meeting at 10 am on that day. He went to see his Solicitor and went in late that day. He had had enough. He considered that he had been dumped. By this date, he considered that the Board was not taking him seriously He went on holidays and resigned his position. He considered it fortunate that he had not had a breakdown, such was the intensity of how he felt that he had been edged out. He believed that he had no alternative outside resignation. The Complainant submitted that he had not worked since his termination date and he was now 70 years old. During cross examination, The Complainant confirmed that Board appointees were proposed by him or others and he denied that it was a Dictatorship which excluded male participants .He confirmed that there had been two other Makes on the Board during his 27 year tenure and confirmed that the four male appointees after he left were most likely the result of more favourable reaction to a female initiated invitation .He denied that he was a dominant force on the Board .He confirmed that he had a gross salary as CEO of €101,000 and the incumbent received €70,000 He confirmed that he had spoken about reducing his hours in 2013. He benefitted from the assistance of the Independent HR practitioner in this regard and expected to assume the role of executive chairman during the transitionary period. This role would manage several projects. He denied that he wanted to remain in charge. He confirmed that he has requested a contract to cover the revised role. He had sought advice from the Respondent Solicitor on the nuances around his being unpaid for an aspect of his work and paid for the remainder, but had not secured the contract before he left. He understood that the Company Secretary and another Board member were to sort this out. He confirmed that Ms A had contacted him on one occasion after his 5-week sick leave, to ascertain whether he wanted to chair both the Management and Board of Management Meetings. He indicated that this had been agreed between them. The Complainant confirmed that he wasn’t wanted at the management meetings. Ms A had told him that if he turned up she would walk out. The Complainant confirmed that he told her that “If you walk out on Tuesday, no point coming back on Wednesday “ The Complainant submitted hat he was heartbroken at not being wanted. He confirmed that he had initially agreed to meet with the HR practitioner but he refused to meet him regarding the meetings issue. He contended that it was a prerogative of the Board to curtail his attendance at meetings rather than the CEO, Ms A. It was his understanding that they were to share governance but Ms A wanted to take it on immediately. He denied saying that he hoped Ms A would resign, but confirmed that he had addressed individual Board members on his level of disquiet. He denied ignoring Ms A at the AGM on May 18. He also denied agreeing to settle on taking the last 30 minutes of every second Management Meeting. He understood that to attend a meeting equated with chairing the meeting. The Complainant confirmed that it was he who instigated the request to extend his tenure to March 2016 in terms of the duality of his function. He said he would settle for a presiding role over the social activities. He couldn’t recall if there was a response from Housing. The Complainant explained that he was ill for 17 weeks during the transition period and was bothered by the uncertainty in the role that was emerging for him in the new regime as it simply lacked clarity. He felt that he was put on a heap. He submitted that he was not prohibited from being chair by any party. The Complainant confirmed that he vacated the CEO office in favour of Ms A. he confirmed that Ms A had been out on stress leave in mid-October and she approached him on October 19 in his back office stating that they ought to shake hands on making progress. She stated that if he did not support her, she would tell the Board everything, this was not clarified. Ms A went on to present to the Board, where the complainant had been prevented from attending the meeting. The members were shocked. The Complainant described this as his Tipping point in the case. The Complainant denied that he had excluded Ms A at his last function on 22 October. He had asked her if she wished to speak and she refused. He had made sure that she was mentioned in the speeches. He knew that it was going to be his last night at work. The Complainant confirmed that he was stressed by the actions of Ms A and the Board. He had not received a list of complaints from Ms B. He wanted to give proper notice. He confirmed that he was familiar with the staff handbook and the grievance procedure. He reaffirmed that he had spoken about his dissatisfaction with Ms A and the Board, but had not committed it to writing. The Complainant refuted that he left because his control of the company had been depleted by Ms A. He considered himself constructively dismissed. The Complainant confirmed that he had a role in Ms as probation, but he had not completed it. He also stated that he had never actually formally resigned from the CEO position. There were 4 employees on the Board but they did not hold votes. He clarified that in his role as CEO, he had reported to the Respondent Board. He submitted that Ms A reported to both he and the Board. He had not wanted a ceremony to mark his retirement and he received a signed card from everyone in April. When asked whether he had seen the Board mobilise in previous cases of disharmony, the complainant responded by saying that no one had been excluded in this way before and he had hoped for resolution. Evidence of Ms B Ms B was a founder member of the charity and a previous Board member. She confirmed that the Complainant had spearheaded the development programme which lead to a fulfilled dream for the service. She stepped out of the Organisation while her husband was ill and returned She submitted that over her 20-year work experience at the service, the Complainant got things done. He was not forceful of hostile and she took offence at his being mentioned as cajoling the role played by women on the board. He did not always get his own way and he did not control her as a Board member. On her return to the Board, she could see that there were difficulties at Board level. She was uncertain whether these difficulties were present at the Oct 22 function. She did not have a recollection of list of complaints dated October 26. She is no longer involved at the charity. During cross examination, she confirmed that she was absent from the board in 2005.She confirmed that there were women on the board who agree and disagreed with the complainant. Ms B was one of three females invited to join the Board. They were later joined by two male members. No one came off the board. Ms B picked up on some environmental difficulties but thought they would be resolved. She called the Board Meeting on October 26 and confirmed that she had a list of complaints. She recalled Ms A stated that natural justice had to be applied. She felt that the Board couldn’t deal with it. Ms B confirmed that she didn’t think that the complainant had anything to resign about and hoped that a “wait and see “approach would assist the process Evidence of Ms C Ms C worked as both a Volunteer and a Carer until 2002.In the event of disagreements, the Complainant listened and was not hostile. During cross examination, Ms C confirmed that she had been a Committee member rather than a board member. She confirmed that the Complainant would be the person who put suggestions forward Evidence of Ms D Ms D had been a Board member on two occasions. Once in 2001 and again in 2011. The Board were happy with the complainant as CEO and as Board members, they were encouraged to give their opinion. During cross examination, she confirmed that only views contrary to the complainant were expressed on about a 10% margin. The Vision for the Charity was deemed as very important to the complainant. Evidence of Complainants Son, The Complainants son was an unannounced witness but the complainant’s representatives sought his inclusion. His son submitted that he was unable to agree with or deny the evidence submitted by Ms G that he had sought her ought to address his Father on work issues.
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Summary of Respondent’s Case:
Preliminary Argument:
Counsel for the Respondent opposed the application for reasonable cause. He submitted that the Respondent was sympathetic to the Complainant. However, he drew the attention of the hearing to the void in operating the claim first day .He submitted that the complaint form had not been submitted consistent with the first alleged date of January 2016.he WRC Guidance notes were available to the Complainants legal Team and the letter received from WRC on March 2nd 2016 should have set off alarm bells to prompt an action .He drew attention to the time delay between March 2 , 2016 and September 17, 2016 when the claim form was eventually submitted. He argued that the reasons advanced by the Complainants legal team for the delay could not satisfy the recognised Test in “Cementation “.
Counsel confirmed that the Respondent was not prejudiced by the argument on time limits.
He opened extensive case law to the hearing on:
1 ADJ 1568 where a trainee Solicitors inadvertence failed to satisfy the test for extension of the time limits.
2.Kinsella V Clare Hayes DWT 13154 where the Labour Court did not accept that a delay through illness satisfied the test for reasonable cause.
3 Servicer Irl Industries ltd and Juanita Wilkinson EDA 1713 where the complainant failed to demonstrate a causal connection for the delay in submitting her complaint.
4 Kapok and Vladimir Augusto Arantes UDD 1625, where the Labour Court refused to grant reasonable cause as the complainant had managed to file a related claim within the time limits.
Counsel for the Respondent submitted that the Complainant was a strong controlling force on the service. He created the Board and surrounded himself with women who had no input and did not appreciate their roles. He argued that the complainant had difficulty in the face of relinquishing his power on retirement as CEO. Witnesses confirmed his forceful and aggressive approach. He submitted that the Board had been paralysed in the context of the hostilities that arose.
The Respondent had offered mediation to the complainant and incumbent CEO. The complainant had initially refused and believed that the mediator was taking the new CEOs side. The Respondent submitted that the evidence offered by Ms A at the point of resolution of the July impasse should be preferred. The Complainant could have taken a note of the resolution.
The Respondent was not able to condone the role of Executive Chairman. The Complainant had extensive knowledge of the staff handbook, grievance procedure and staff forum but he did not action a complaint in advance of the board meeting of October 19, 2015, which shocked the Board.
The Complainant left employment on 27 October and had not exhausted the grievance procedure. The Complainant had not demonstrated loss or mitigation.
Evidence of Ms A
Ms A had worked a Community worker during 2002-2014.She got to know the complainant during that time and they worked well together. In 2012/2013, Ms A knew that the Organisation would be seeking to replace the role of Clothe Complainant asked her if she was interested in the position?
She wasn’t interested immediately, but following some internal changes to her job, she applied and her CV was the last submitted. She attended a rigorous interview and was successful. She received an offer of CEO on 30 December 2014.
She met with the Independent HR practitioner the complainant on January 5, 2015and talked through the contract and job description. She expressed some confusion regarding the boundaries of her role given that the role had been held for such a long length of time. She was assured that the Complainant had no desire to continue as CEO, but would assume the Executive Chair role. She interpreted this as her having a “free reign to get on with my job”. The HR Practitioner had an issue with the complainants stated intention to carry on chairing both the Management and Board meetings. Ms A submitted that her job description reflected that she was the line Manager for managers. A red Flag went off, she left it there and did not push it. She met with the complainant on two occasions during February for 3 hour meetings. She commences on March 2, acting for 1 month then appointed to CEO. The Complainant told her that he was staying until the end of the year.
Ms A made several preliminary observations that the Complainant did all the talking at meetings and the 14 Managers were surprisingly silent. She resolved to do things differently. She was not prepared when the complainant became seriously ill during her first week and was hospitalised. She jumped in at the deep end but kept the Complainant updated. She submitted that she began to lead meetings her way and found people responsive. She changed weekly meetings in frequency to every second week. She was delighted when the complainant informed her that he was well again and ready to return.
She found that the complainant was not receptive to the changes she had made and she began to have serious concerns when he expressed his intention to resume the chair of the management and board meetings. She sought to express these reservations but the Complainant took it personally and suggested that he wasn’t wanted. Ms A submitted that she couldn’t yield on that point as she had not come in to be an Apprentice/Trainee. She wanted the support of the former CEO, but it was a tough process.
Ms A submitted that she did address the complainant on that if she was prevented from chairing the meetings, she may as well go home. She was not able to walk out as she had been refused a career break from her former employer. She suggested that they both address the HR Practitioner on the issue of chairing meetings, but the complainant refused and stated that he intended on bringing the matter to the Board. Around this time also, the Complainant wanted a close relative to project manage an initiative on behalf of the charity. This concerned Ms A.
The Complainant chaired the Board Meeting and kept his distance from Ms A. He was on leave from May to July. When he returned, tension prevailed, she sought out the HR practitioner, who agreed that she ought to chair the Management meetings as CEO. The issue of the legal compliance issues associated with having an Executive Chair were also emerging from the legal advice secured and Ms A believed that the Organisation was at risk if the Executive Chair role was permitted to unfold. The issue was resolved on 9 July when the next Management Meeting was to be structured around a half hour participative process by the complainant. Two weeks later, Ms A chaired the meeting and delegated the August meeting to the complainant to chair.
During Ms A s annual leave in August, she had cause to cancel an aspect of service provision but was chipped at by the complainant. She believed that ongoing tensions were evident and attributed this to a long-standing loyalty to the complainant in his previous role.
In early September, the complainant discovered that four new Directors had been appointed to the board but she knew nothing. She was distressed and took some time off. She decided to address the Board of Management “to take a full hold of the position” She sought the complainant out in advance of the meeting and asked for his support, which he refused.
She addressed the Board on her vision as CEO on October 20 during the CEO update. There was no response from the complainant and Ms A submitted that he told people that he would be leaving that week.
During the awards ceremony in October, her seating had been arranged and she was shoved in a corner. She had no further contact with the complainant after that. She formed the view that the complainant had issues in letting go and it was untrue that he was pushed out.
Ms A confirmed that her probation had taken place and she and the complainant had met regularly over the 6 months. The complainants 20 hrs were based over Monday, Tuesday and Wednesday.
During cross examination, Ms A confirmed that she had previous experience of governance, but on a smaller scale to the Respondent service. She confirmed that she had found the complainant formidable with a strong temper, which he was aware of. She was, however able to stand her ground. She had not been headhunted and had one conversation with the complainant prior to the interview. She received the job description in December. The CEO Boundary issue became a deal breaker. In the absence of clarity, there would be confusion and organisational chaos.
Ms A confirmed that lines of communication were maintained during the complainant’s sick leave in March 2015.She confirmed that she had opposed his stated intention to continue to chair both governance meetings. This was the overwhelming issue of concern. Ms A reaffirmed that she had sought out the Hr practitioner to address this impasse and ambiguity. He started to mediate with Board approval. (letter of June 29)
The July 9 email which confirmed a resolution was mutually agreed, but notes were not kept.
The Board instructed Ms A to address the Housing Association on how best to manage the complainant’s status. Unless the Housing Association have immediate concerns, their response issues in their annual return.
Ms A confirmed that she had received very little affirmation from the complainant and she felt that she was not trusted. In respect of the interaction dated October 19, Ms A confirmed that she didn’t shout at the complainant. She addressed the Board the following day and got applause.
The Board was intent on addressing the confusion in the role demarcations between CEO and Chairman on Tuesday 27 October, but the complainant had resigned. Ms A confirmed that she was informed that she should anticipate several complaints. She referred to the need for natural justice. She decided to submit some points of clarification for the Board.
In response to Counsel, Ms A reaffirmed that the issue was always the Executive Chair role. She disputed that the Board had not taken sufficient steps to address this following their request for the complainant to remain on in April 2015. Ms A concluded that this level of confusion in the roles was not merited. She had tried to address the situation within the remit of corporate governance.
Evidence of Ms D (Company Secretary)
Ms D became Company Secretary in January 2015. She was the first appointment to the position. She submitted that she had been naïve in taking on the role as she understood that it would only involve signing some forms. She confirmed that the Complainant served as the main person in the organisation and while forceful and domineering, he had the best interests of the service at heart. He tended to surround himself with women who agreed with him. MS D recalled that the topic of the complainant’s retirement came into focus in 2013.
She recalled that the new CEO was appointed in January 2015 and had responsibility for day to day operations. The HR practitioner had addressed the demarcation between the former CEO and the incumbent. She recalled that the complainant had viewed the incumbent as the ideal candidate and Ms A was told that all she had to do was breathe.
Ms D was not made aware of minutes of the Board Meeting as these were the preserve of the complainant who compiled them.
During the complainants, sick leave, the new CEO got great support and on the complainants, return, tensions became obvious at Board Meetings. The Complainant was keen to take on the role of Executive Chairman in a paid position and the advice of the Auditor and Solicitor prohibited this. He had difficulty in accepting this. At the AGM in May 2015, Ms D recalled that the complainant did not acknowledge the new CEO or introduce her to the group. The Complainant was not happy and she approached him on this stating “Is there anyone good enough for you “
Ms D was not happy with the situation between the newly appointed CEO and the Complainant at Board Meetings The Complainant had shouted at her and intimidated her and didn’t speak to her after that .During the October Board Meeting , the new CEO read out her vision for the service .As she concluded, the complainant engaged in an angry tirade and stated that he couldn’t work there and the meeting finished .She submitted that the complainant stated that if the CEO departed then he would return.
Ms D was not in attendance for the Board Meeting called by Ms B on October 26. She did attend the awards night and recalled that the CEO was not acknowledged by the Complainant. The Board received the complainant’s resignation on October 27, which she considered rash on his part as she believed that they could have worked things out. At the time of resignation, the Boards hands were tied as it was very difficult to address the complainant.
During cross examination, MS D accepted that she naively took on the role of Company Secretary .She did contribute to meetings but felt that the complainant dominate women ,but she had not made this known as a Board member .Directors were approached by the Board rather than being voted on .Ms A recalled the Respondent Solicitor attended the March Board meeting and she understood that the role of executive chair was not a viable proposition .She was under the impression that the complainant had forwarded his new contract to the solicitors . the HR practitioner compiled the letter sent to the complainant on April 30, where he was requested to remain and Ms A confirmed that the complainants controlling behaviour was not incorporated into that letter.
Ms A was aware of the tensions between both senior managers but didn’t know exactly what was going on .It was not raised at Board Meetings .In answer to counsels question on what steps were taken by the Board , Ms A confirmed that the Board asked the Hr practitioner to mediate but the complainant refused to attend .Ms A then confirmed that the Board had been notified of the mutually agreed resolution in July but had not probed the depth of that resolution , preferring instead to move on .The matter was not raised formally at Board level , but was known by the members . progress was impeded due to the complainants extended sick leave. When Counsel addressed the complainant on the complainant deserving better treatment by the respondent, Ms D stated that the Board did not anticipate his resignation and were shocked.
The Board followed the resignation by securing legal advice and regrouping where the complainant’s resignation was unanimously accepted.
Ms E (Deputy CEO)
Ms E had started as a Volunteer, involved in Meals on Wheels and commenced as Deputy CEO in 2012, now retired. She recalled that the complainant was planning on taking over the Social activities portfolio. He was an excellent worker, who liked his own way a lot. He uses the phrase, “One Voice” She did contribute at the Executive Board Meetings.
Ms E observed that it had been hard on the new CEO as there was no one to train her when she started due to the complainant’s sick leave. She recalled the complainant asking her on one occasion, how the CEO was getting on, and she replied “very well” She was aware of tensions between them but was hoping that it would resolve.
She found the complainant agitated on his return from sick leave and he was cold and unfriendly towards her. She was aware that the Hr practitioner was involved in preparing for the complainants exit but she had not been at all meetings. She was not a Director.
In or around July 2015, she recalled the complainant requested a standard contract and she forgot to insert salary details. The complainant inserted it himself. The role was Executive Chairman and the complainant stated that he would bring the contract to the Solicitors and it was not mentioned again. She was undertaking filing in the CEO Office later that month and found the contract. She was instructed by the CEO to place in the staff file in a Cabinet.
She recalled the Staff awards night. She had arranged the CEO and Company Secretaries names on the Directors table. She discovered that they were moved later.
She recalled the October 19 Board Meeting where 7/12 attendees were present. The Complainant had stated that he was unhappy and was annoyed. The Complainant stated that he thought that the CEO would leave and would they let him know as he would come back and sort things out.
During cross examination, Ms E confirmed that she had not explored the unfriendliness between both senior managers. Everyone was busy trying to get work done. She was aware that the Hr practitioner was engaged in mediation. She contended that the complainant could have participated and “done more for himself”. She assumed the difficulties were being resolved.
In response to Counsel, she was unsure on the date referred to as the contract issue. In response to Counsels question on whether she considered that the Board had done enough to help the tensions, she replied “we didn’t”. She herself had not been approached for help via aggrievance and the staff forum was still existence.
Evidence of Ms F
Ms F ran the Friendship Club and was a Board member since 2013. The Board was run in an autocratic style where nobody opened their lips. She attended on Monday and Wednesdays and didn’t notice anything of the tensions.
She recalled the October 19 Board Meeting where he CEO had announced her vision and she and the Company Secretary departed the meeting. The Complainant then engaged in a rant, critical of the CEO and the Board just sat there. She had forgotten the content. The Complainant then visited the Friendship Club where he repeated the rant in front of 20 attendees. Her presence there was unexplained as he had resigned as CEO at that stage. She was confused as to what was wrong between the complainant the CEO.
During cross examination, Ms F confirmed that there hadn’t been any guidance for the roles of Board Members. This had since been rectified. Staff had a say, but she as non-staff didn’t have a say. The Complainant was captain of the ship. She didn’t intervene when she didn’t know the rules.
Evidence of Ms G
Ms G worked in the kitchen as a volunteer. She thought that she and the complainant were very good friends and he confide in her. The Complainant had pursued the CEO to come to the service for over 4 years and he was pleased. Ms G understood that he complainant was planning a full retirement but after 3 weeks that changed. She submitted that the Complainant had extreme difficulty with her and wanted her out of the building. Ms G challenged him saying “what is wrong with her, you waited for her long enough”
Ms G found the CEO to be fair and honest and didn’t interfere. She found the complainant controlling bit he couldn’t control her. The complainant had made a job for himself and he was not ready to let go of the reins. Some staff were terrified of him. While the complainant was hospitalised during his illness, he phoned Ms G during the afternoon and evening. She was aware of the “blow up “on October 19 and thought there was no need for it as nobody had done anything.
During cross examination, Ms G described the complainant as “her friend for life” She advised him and asked whether he wanted to involve his family during his unease? She recalled that the complainant’s son had approached and asked me to talk to his father. She submitted that she had tried and tried but the complainant wanted the CEO out as he had controlled everything. She submitted that she couldn’t believe that the complainant had been humiliated or insulted. He could go to two meetings while she had no forum. She had not confided in him but recalled advising him to “put ye’re two heads together “in respect of his issues with the CEO.
AT around lunch time on October 19, the complainant sought her out and spoke to her on his distress for 20-25 minutes. This was where he references to the “4-year search was mentioned “She told her husband but did not report it up.
Findings and Conclusions:
Preliminary Argument: I have carefully considered the request submitted to extend the statutory time limit in this case. I have also considered the extensive case law submitted by both parties. As an Adjudicator, I am bound to work within the statutory time limits pertaining to Section 8(2) of the Unfair Dismissals Acts as amended by the Workplace Relations Act of 2015. S.8(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 the Director General — (a) within the period of 6 months beginning on the date of the relevant dismissal, or (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General The Complaint before me was lodged on 27 September 2016.The Parties agreed that the date employment ended stood at 27 November 2015. This reference period of 10 months brings the claim into the territory of 8(2)(b) of the Act where the Complainant has sought an extension of time limits on reasonable grounds. The Complainants submission to the hearing detailed a much earlier process, whereby the Complainant had decided to follow a course of action for Constructive Dismissal in October 2015, notice of which was communicated to the Respondent on 23 December2015. The Complainants representatives then submitted that an online application was submitted on January 29, 2016, followed by a letter of intention to pursue the claim. In early March, 2016 the WRC clarified that no application had been received on line and this notification was determined as lost at the Solicitors Office until located by means of a File Review in September 2016.This prompted the referral before me. The Respondent has consistently argued that the claim has been statute barred and could not envisage a safe application of reasonable cause. In so doing, Counsel emphasised the missed opportunity to remedy the omission on March 2, 2016 and the extensive length of the delay. It now falls to me to decide on the application for Reasonable cause. On the first day of hearing, Counsel for the Respondent sought a Preliminary Ruling in advance of my hearing the substantive case. I explained that the WRC procedures required me to hear both the Preliminary Argument and the Substantive case and I would then issue a decision in the case. The right of appeal would then be to the Labour Court. There is a 10-month time lapse from the date employment ended until the date of referral to the WRC. This is a profound and lengthy time lapse and I have sought to look behind the circumstances of this delay to ascertain whether I can grant the extension sought? The established test for deciding if an extension should be granted for reasonable cause is that formulated by the Labour Court in Labour Court Determination: WTC0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll, which drew from the High Court case of O Donnell V Dun Laoghaire Corporation {1991] ILRM 30. Here the test was set out in the following terms: - It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be considered. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown, the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case. In the instant case, the Complainant submitted that a first in time application for Constructive Dismissal was made on January 29, 2016.They drew my attention to the accompanying letter of the same date which referred to an enclosure. The Complainants representatives did not have any material proof of having made the first in time on line application. I accept that they had placed the Respondent on notice of the intention to follow this course of action in December 2015. I did not establish the presence of any enclosure contained in the letter to WRC dated January 29,2016. The letter of response from The WRC dated March 2, 2016 was stamped as having been received on March 3. I agree with the Respondent that this notification of a void in the application process should have focussed minds in the Complainants Representatives. Instead, this key piece of direction went missing for a 6-month period and only resurfaced by way of a file review. This activated the instant complaint. In applying the Cementation test to the facts as presented, I have established that the Complainant in the case was under the clear impression that his complaint was in train before the WRC as he had received a letter from his Solicitors Office to that effect. What followed were a series of careless human errors at the Complainants Solicitors Office which disadvantaged the Complainant and brought the case he sought to bring into jeopardy. I cannot attribute any of these omissions to the complainant directly. It is clear to me that he had no desire in delaying the institution of proceedings. I understand the reasons submitted for the delay, they make sense. They are not irrational or absurd and the reasons submitted formed a causal connection for the delay. I am satisfied that were it not for the mislaid notification from the WRC, the Complainant would have presented his complaint in time. The Complainant was not responsible for the delay nor did he advance any medical reasons for the delay. I have considered the Complainants submission on “justifiable excuse “and the Respondent opposition to same. I find that the Complainants Representatives fully intended on lodging the complaint within the statutory time limits. This is evidenced in the letter dated January 29,2016. I realise that the period of January to March 2016 formed the early days of the new procedures under the Workplace Relations Act 2015 and parties experienced some teething problems with the system. Neither party in this case advanced this in their submissions but I have included it as historical detail. I accept the Respondent submission that extensive On Line Guidance was available through the WRC. In seeking to determine whether the arguments advanced by the Complainants representatives satisfy the” justifiable excuse for the actual delay”? Sales Force.com V Leech EDA 1615. I am satisfied that the extended loss of the WRC notification dated March 2, 2016 formed the excuse for the actual delay. There were no extraneous matters at play. Once the document came to light in September, remedial action was taken. I have already termed the omission to process the case in real time a careless human error. However, human errors are part of any workplace and on balance I find that the complainant should not be disadvantaged and barred from being heard in what is an arguable case. Finally, in seeking to exercise my discretion on whether to grant an extension due to reasonable cause, I am mindful that no prejudice was suffered by the Respondent who was on notice of an impending action from December 2015. The facts surrounding the delay are far from ideal and deviate significantly from best practice in case management. However, I have found that the complainant deserves to be heard in the case as he was in no way a contributing factor for the delay. The test in Cementation has, in my view been met. I have exercised my discretion and have extended the time limit due to reasonable cause and I will now proceed with the case through that prism. Substantive Case: I have carefully considered the oral and written submissions from both parties. I have also considered the documentation which followed. This is a claim for Constructive Dismissal. A Constructive Dismissal will occur when an employee terminates his contract of employment where, because of the employers conduct, the employee was entitled to terminate his contract without notice or where it was reasonable for him to do so. I must decide whether because of the employers conduct the claimant was entitled to terminate his contract or it was reasonable for him to do so? In the EAT case of Brady V Newman UD 330/1979, the Tribunal stated: “ ….. an employer is entitled to expect his employee to behave in a manner which would preserve his employers reasonable trust and confidence in him so also must the employer behave” The Organisation This case arose in a Charity setting made of many salaried staff and volunteers. This sector has come in for enhanced scrutiny in recent years and Governance of the Charity goes to the root of this case. Nothing in this decision is meant to disturb the undisputed energies and level of success of the complainant in building such a successful organisation, admired by many as a template. This case evolved within the period where the “torch was being passed to the next generation of leadership “at the service. I will take a moment to synopsis this period as the antecedent event. I accept that the complainant was looking forward to his retirement and had prompted the composition of an Advisory Board to succession plan. This culminated in the appointment of the CEO on March 2. I note that Ms A had left her previous employer, without the requested career break. She took a certain risk in taking on the new role and her enthusiasm and interest in the service was visible throughout the hearing dates. It is clear to me that the Complainant relinquished the title of CEO but was not prepared to separate from the Organisation he had created. His loyalty to the service was unquestioned. However, role demarcations between the established position of CEO and the “embryonic” title of Executive Chairman were never established to the satisfaction of either party. There was a clear floorplan for the role of CEO, however, I noted a lack of clear direction on governance in the CEO job description. I was struck by the variation in salary from CEO position pre-March 2015 and post March 2015. Ms A submitted that she was aware of the variance and accepted it. For me, I noted that the cumulative salaries of CEO and Executive Chair were to be 112, 000 euro, which came in the vicinity the CEO salary of 101,000-euro pre-March 2015. I found that the CEO position was planned to be dissected both financially and operationally and this went to the heart of the matter. The proposed role of Executive Chairman did not pass the scrutiny of the Respondent Auditors and Solicitors and there was a myriad of recommendations to resolve the impasse. There was an identified road block on holding a paid position and chairing a Board of a charity and this formed the sub plot of the case. This work should have been completed well in advance of March 2, 2015. I note that the complainant was actively engaged in the topic of his role and his salary in the wake of the appointment of the CEO. I found this unusual, given the primacy of the role of CEO on financial matters at the charity. The matter was unresolved at the time of his departure in October 2015. The role varied from being pitched at either a consultancy or an employee of a newly formed company. The uncertainty was pronounced. I found some guidance in the document sent by the HR practitioner to both parties dated 30 June. IN this he stated that: “Board Members and managers are struggling somewhat with the two-leader challenge posed in the transition process”. It went on to make several proposals of resolution on paid and unpaid positions for the complainant with a rider outlining that clarity of job functions was imperative. I would like to have met the Hr Practitioner who offered to mediate in this case and who compiled the key documents of April 30, which retained the complainant and the June document which pointed to a critical juncture in governance. This was appeased following the agreement of Early July, where both parties had differing views of the content. Based on the evidence of the complainant and Ms A, I find I prefer her version as she operationalised the outcome in a subsequent meeting and sought to operationalise it on October 19 meeting. This was not disputed. The course of events was not assisted by a 17-week protracted period of absence during annual leave/sick leave on behalf of the complainant. I also note that he CEO had a period of absence in relation to workplace stress. I have considered the evidence of the Respondents Board witnesses. I found an awareness of the tensions between the parties but this was overshadowed somewhat by a lack of a shared sense of purpose to agree an action plan to resolve matters. I found the Board to be indecisive in this case, well intentioned and loyal certainly, but they clearly did not have the experience to deal with the sensitivities in this case. I commend them for seeking the further input of the Hr practitioner in June and found it unfortunate that his services were not retained post August 2015. A central component of the complainant’s evidence rested on his belief that a campaign had been raised against him by both the CEO and the Board. This was reflected in his letter of resignation, but not evidenced formally before that. I accept that the topic of Inter Manager tension was a talked about issue over the course of April – October 2015 at the service, I could not establish that it crystallised into an actual grievance at any stage. The Complainant did not specify a chosen course of action. I did establish that Ms A had raised concerns regarding the integrity of governance both with the complainant and the HR practitioner. There was a semblance of resolution in July but this was not lasting. The Complainant placed his faith in the Board to resolve the issue, yet this circumvented the foundation approach of activation of a grievance. I note that the complainant never actually resigned from the CEO position but did hand the reins over at the end of March 2015. He was not inducted in his new role and it seemed to be that this new role had no floor, ceiling or walls. The roles of Chair of the Board compiled in July 2015 collided with both the Auditors and Solicitors advice and set out a circuitous route of accountability through the CEO to the Board. I could not establish that a campaign was vested against the complainant. Instead I found that an inordinate amount of power had been invested in the complainant and nobody, not least the complainant grasped the enormity of the task of true succession planning and the transfer or delegation of those powers. This had a catastrophic effect on the Organisation which almost lost two CEOs in one calendar year. I find that the complainant would have benefitted from an advocate during his employment. In Allen V Independent Newspapers [2002] ELR 84, the claimant was asked to work as a gossip columnist and watched a crime story be passed to a colleague (her speciality) she was isolated, marginalised and became ill due to the harassment. The facts of this case are somewhat distinguished. The complainant in this case did not attribute his illness to any event caused by the respondent. He was in constant contact with the governing body outside his 17-week absence. However, of critical importance to my analysis of the case was the reported response of the complainant at the October Board Meeting that spilled over to a conversation with Ms G and the Friendship Club. While disputed by the complainant, I found the evidence of the respondent witnesses to be compelling in this regard and it demonstrated a serious fault line in interpersonal relations played out in front of Directors, volunteers and service users. The Complainant knew he intended to leave shortly after this as reflected in his evidence of October 22 staff awards. I have found that the Board adopted a “watch and wait approach “to these tensions but did appoint the Mediator, initially rebuked by the Complainant. I accept that there was a looseness around provision of contracts, probation and interface between CEO and Chairman and this did not help the complainant. However, while this was some way deficient of best practice it did not amount to treatment capable of satisfying the test for a constructive dismissal. It did not amount to mistreatment which would justify a decision to resign from a position. I note that the complainant gave one months’ notice rather than the two-week contractual term. It is very difficult for an Organisation such as the Respondent to make a transition from the clear Architect of the service. It was clear from the April 30 letter that the complainants planned exit was viewed with sadness and trepidation by the Board. I note that the complainant chose not to have a going away ceremony but treasured the farewell card he was given. I must find that the complainant had not prepared himself for the cold reality of transition and this created a 7-month hiatus at the service. I could not establish that the Tipping point submitted by the complainant was a justified reason for his termination. The newly appointed CEO had exercised her resolve to make her regime work and the complainant made a conscious decision to veto the invitation extended to him to participate in this revised Governance. It is not for me to weigh in on the intricacies of the Respondents governance arrangements. The Complainant indicated that he would be waiting in the wings if the regime failed. I did not receive details of the complaints raised on October 26. I note that the complainant resigned one day later. I find that the complainant may well have felt that his position was untenable and believed that he had to resign. However, on an objective analysis, I find that his actions were precipitous, where other options of conflict resolution were open to him in an organisation where he was both familiar and well respected i.e. grievance procedure and mediation. I conclude by re-affirming that nothing in my decision should disturb the positive record of achievement and lasting legacy of the complainant in this case .However, there was a certain amount of confusion and lack of contingency when the planned road to transition became obstructed , the complainant added somewhat to this confusion himself by not embracing the day where he was prepared to forfeit power in a measured way and make way for a new Leadership style .Sadly , I find he got lost in the process . I find that the claim for Constructive Dismissal cannot succeed. |
Decision:Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found that the claim for constructive dismissal cannot succeed.
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Dated: 3rd April 2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Constructive Dismissal |