ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00010154
Parties:
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Noel Murphy Independent Workers Union | Ronan Daly Jermyn Ronan Daly Jermyn |
Complaint(s):
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-00013224-001 | 22/08/2017 |
Date of Adjudication Hearing: 19/02/2018
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Procedure:
In accordance 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 complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The claimant commenced employment with the respondent in the role of Customer Experience Specialist on April 26th 2016 to May 11th 2017, the date of the claimant’s resignation.
Events:
25/1/2017. The claimant addresses an all hands meeting outlining staff issues on the floor and enquiring about workplace conditions. Followed up with an e-mail to a group manager.
2/2/2017. The claimant meets with a group manager informally to discuss workplace issues.
7/2/2017. As no movement on the previous meeting is evident, the claimant sends an e-mail to the employee engagement officer and the internal communications officer. The claimant again raises her issues and the desirability of an employee forum as she does not see a method through which the collective employee issues can be possibly be addressed by the respondent. The claimant offers to assist in facilitating an internal employee forum on a voluntary basis, in addition to her own duties. The respondent informed the claimant that they had recently carried out an interview for a dedicated employee engagement specialist.
16/2/2017. The claimant sends a message on g-mail chat with a link to a survey for internal use as an evidence gathering based approach.
Later that same day the claimant was approached by a group manager and requested to attend an informal meeting. The claimant alleges that she was question in a very aggressive manner and was not afforded the opportunity to bring a colleague or representative with her. The claimant also alleges that she experienced a high level of stress and anxiety due to the manner in which the meeting took place. The claimant was requested to cease the survey. The claimant said as the meeting is informal the request to cease the survey must also be informal and that she would consider the request on receipt of the minutes of the meeting.
20/2/2017. The claimant receives what she alleges is an incomplete record of the minutes of the meeting but agrees to stop the survey and supply the respondent with the information once it is collated.
Later that same day the claimant is invited to an informal meeting with H.R. Once again, the claimant alleges she was not afforded the right of representation. The respondent states that the purpose of this meeting was to close out the previous conversation that the claimant had with the group manager.
11/4/2017. The claimant requested a day off, namely 29/4/2017. The day off was refused.
26/4/2017. The claimant e-mailed a Team Manager outlining issues regarding the day off and highlighted issues relating to annual leave and restrictions during the period Jan/Dec.
27/4/17. The Team Manager replied to the claimant and notified her that the claimant had the possibility to book the 29/4/2017 off since February 10th and only attempted to do it on the 11th of April. The Team Manager also enquired as to whether there was something important required of that specific date.
28/4/2017. The claimant replied that she was not legally required to divulge why she needed the day off, but confirmed it was for the wedding of a close relative.
The same day the Team manager replied indicating that the request for the day off remained declined.
The claimant did not attend for work on the 29/4/2017 and subsequently submitted a medical cert stating she was unfit for work due to "related stress" from May 3rd to May 10th.
5/5/2017. The claimant emailed the respondent from work to state that HR had telephoned her and wished to discuss with her the issues raised in relation to the Organisation of Working Time Act. At this point the claimant stated she was not comfortable with the further delays. The claimant further states that she believes the actions or inactions of the respondent are serious enough to warrant her resignation as there has been potential breaches of her contract. The claimant also states she would rather resolve the issue internally before resorting to any external industrial relations procedure.
The respondent replied the same day confirming the acceptance of the filed medical cert and stating there was no requirement for the claimant to return to work prior to the date contained in the medical cert.
8/4/2017. The respondent wrote to the claimant regarding a meeting to discuss the alleged concerns raised in relation to the Organisation of Working Time Act. The e-mail also acknowledges the claimants reference to her resignation and asks her to reconsider and to give the respondent the opportunity to address these issues that she may have in accordance with company policies and procedures.
The claimant replied the same day stating she would be happy to attend a meeting after the 10th of May to discuss her concerns.
11/4/2017. An informal meeting took place between the respondent and the claimant, the purpose of this meeting was, according to the respondent, to gain an understanding into the alleged breaches of the Organisation of Working Time Act and to try and resolve these issues. It was during this meeting that the claimant tended her resignation as she felt the respondent was doing little to address her concerns and in the circumstances, she felt she had no other option but to resign. The respondent outlined to the claimant the facilities available to her and asked her to reconsider her resignation, the claimant was also informed that her resignation would not be accepted unless it was in writing. The claimant was also reminded of the policies and procedures that should be utilised. The claimant tended her resignation in writing an hour later.
Findings:
Both parties made written and verbal submissions on the day of the hearing.
Having examined the evidence presented I have made the following observations.
In claiming constructive dismissal, the onus and burden of proof rests with the claimant. In examining the evidence key questions remained unanswered.
Given the timeframe involved, as mentioned in both submissions, February to May, Why did the claimant not make any formal complaints? If the claimant felt so strongly about the matters raised, why did she not raise a formal complaint using the policies and procedures that the claimant was aware of and reminded of? The claimant was afforded ample opportunity to do so.
I also noted that the in the respondents Corrective Action Policy and Procedure, under Offences, section b) Serious Misconduct
Unauthorised or inappropriate use of e-mail, internet and/or computer systems.
The penalty for which, "will result in the initiation or escalation of the Company corrective action procedure, and may result in immediate dismissal without notice or pay in lieu of notice."
By initiating and linking the survey on the respondent’s system, the claimant could have easily found herself the subject of disciplinary proceedings, but the respondent, for reasons unknown, took no disciplinary action but instead tried to resolve the matter informally and was more than willing to engage with the claimant on issues raised.
I found the claimant was in fact commended for her passion and valuable feedback but then took it upon herself to engage in an area which was beyond her remit, when in fact the respondent was already looking to engage someone in that area, and from that point it appears the relationship between employer and employee began to suffer.
I find the claimant rapidly became frustrated with the slow progress, but still did not make any formal complaint.
I believe the claimants decision to resign her position was born from frustration of her perceived lack of willingness on the respondent’s behalf to act on the issues she had raised.
In hindsight, it would have been wise for the claimant to put all the issues in writing and from there a basis for progression could have been established, whereas it appears from the submissions that additional issues arose as time went by, thereby it would have been impossible for the respondent to address all the issues by the time the claimant issued her resignation.
I found no evidence to substantiate the allegation that the claimant was somehow penalised for trade union activity.
In considering all the evidence as submitted, I find the respondent has not acted in a manner that supports the claimants case.
.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The claim for Unfair Dismissal fails.
Dated: 14th June 2018
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Key Words: