ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00012123
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016071-001 | 30/11/2017 |
Date of Adjudication Hearing: 13/03/2018
Workplace Relations Commission Adjudication Officer: Gerard McMahon
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 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).
Background:
This case pertains (predominantly) to a constructive dismissal claim. The claimant’s case (see below) is based upon her (allegedly) inappropriate treatment in respect of the disciplinary, grievance and return to work (from a career break) process by her employer. |
Summary of Complainant’s Case:
The claimant’s case may be summarised as follows: The C.E.O. and Chairman of the board of the employer did not adhere to the organisational disciplinary policy; the Chairman of the Board and the CEO acted in a manner that made the claimant’s position in the organisation as a member of the senior management team untenable; the process undertaken to look at the email\disciplinary matter was disproportionate and unreasonable and caused significant damage to the claimant’s reputation and career prospects; the associated process undertaken was never explained to the claimant, though she asked several times; this same process was deemed urgent enough to warrant a recorded delivery letter to the claimant’s home, but significant delays on the employer’s part did not seem urgent, leaving the claimant stressed and uncertain; it is not acceptable that employees should be treated differently (in this process) because of seniority, no notes were taken at the meeting by the respondent’s personnel and no explanations given as to why they were involved or the purpose of the meeting; the respondent showed a complete lack of respect for the employee throughout the process; the role of the CEO in this whole process has been compromised; since the (earlier) WRC adjudication, relations between the claimant and her employer deteriorated further. Despite stating that she was welcome to return to her post after a career break, she does not believe that this was the case. This has been clearly demonstrated by the behaviour of the HR manager and the CEO and the correspondence received from them and further confirmed by the fact that despite several posts being suitable for her skill set, she was not contacted; there has been no acknowledgement that the WRC (previously) upheld the claimant’s grievance. Hence, the claimant’s postion is untenable and she was left with no option but to tender her resignation. |
Summary of Respondent’s Case:
The respondent argued that the matters complained of in the present complaint are essentially identical to those of the previous complaint. This matter has already been heard and a decision has been made by an Adjudication Officer (ADJ-00007475). The previous hearing took place on 28 June 2017. The decision of the Adjudicator is dated 21 September 2017 and contains the Reference Number ADJ-00007475. That decision was not appealed by the complainant or by the respondent. Hence, the respondent notes that Section 13 (2)(b) of the Industrial Relations Act 1986 clearly states that a Rights Commissioner (now Adjudication Officer) shall not investigate a trade dispute if the Court has made a recommendation in relation to the dispute. The respondent considered the matter – and the above-mentioned investigation\disciplinary matter – to be closed. No disciplinary action was taken against the complainant. The complainant was treated the same as all other staff. The complainant was welcome to return to her job at the end of her career break. The complainant later raised a formal grievance in relation to how the aforementioned investigation was managed. The complainant was dissatisfied with the outcome of the grievance hearing and made a complaint to the W.R.C. which was duly dealt with. Since the previous WRC hearing, only written correspondence passed between the complainant and the respondent. The complainant wrote to the respondent’s Human Resources Manager by email dated 6 September 2017 in relation to her career break. Six emails passed between then and 7 September 2017. In the final email on 7 September 2017, the respondent’s H.R. Manager informed the complainant of the appropriate person to contact in relation to her return to work. Having received an email from the complainant dated 11 September 2017, stating that she would like to return to her post, the respondent’s C.E.O. (who has since left) replied by letter dated 18 September 2017, stating that she would be in contact with the complainant in the coming weeks regarding the next steps in the process. However, the complainant resigned from her position by letter dated 30 November 2017. At the time of the complainant’s resignation, the respondent was dealing with the complainant’s return to work following her career break. Correspondence sent to the complainant in relation to her return from career break was standard and typical of correspondence sent to other employees returning from career break. The respondent submits that it is clear from the correspondence that the complainant’s role at the organisation was still there for her, and in all the circumstances, it was unreasonable for the complainant to resign. In relation to the complainant’s statement that she should have been informed of roles that were advertised, the respondent submits that the complainant was not informed of roles that were advertised as her own role as a head of function was still there. It would not be usual or appropriate practice to discuss vacancies with any permanent staff members unless they expressed an interest in a post. The complainant did not raise a grievance in relation to any fundamental breach prior to resigning. There is no question that the actions of the former CEO or Chairman of the respondent have been designed to withdraw the Complainant’s contract or force her to resign. Furthermore, the respondent rejects the complainant’s statement that the actions of the respondent in relation to the investigation\disciplinary issue outlined above have caused irreparable ‘reputational damage’ and ‘have adversely limited’ the complainant’s career opportunities. Indeed, the respondent was very mindful of how it approached matters not to accuse any staff member of any wrongdoing without first establishing the facts. No disciplinary action was taken against the complainant. The complainant currently holds a position at the ****** and is a Board Member of another high profile organisation since September 2017. There is no evidence provided of a detrimental impact to her career. |
Findings and Conclusions:
At the outset of the hearing, the respondent argued that the matters complained of in the present complaint are essentially identical to those of a previous complaint and that this matter had already been heard and a decision made by an Adjudication Officer (ADJ-00007475). The previous hearing took place on 28 June 2017. The decision of the Adjudicator is dated 21 September 2017 and contains the Reference Number ADJ-00007475. That decision was not appealed by the complainant or by the respondent. Hence, the respondent notes that Section 13 (2)(b) of the Industrial Relations Act 1986 clearly states that a Rights Commissioner (now Adjudication Officer) shall not investigate a trade dispute if the Court has made a recommendation in relation to the dispute. Having reviewed the aforementioned decision, the Adjudication Officer deemed that at the previous hearing it was held that ‘the claimant did not at any stage tender her resignation, therefore a constructive dismissal has not taken place’. Accordingly, the focus of the hearing was on the reasonableness of the claimant’s decision to resign (i.e. claim constructive dismissal). Having reviewed the correspondence exchanged between the parties, it can be argued that the claimant’s action was precipitative and taken 1 month before her due date of return. That is, the claimant failed to present adequate evidence that (subsequent to the first W.R.C. hearing’s award of compensation to her) that the respondent’s actions necessitated or warranted her resignation (i.e. constructive dismissal). |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
There is no award of compensation as the claim is not well founded. |
Dated: 12th April 2018
Workplace Relations Commission Adjudication Officer: Gerard McMahon
Key Words:
Constructive dismissal. |