ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014637
| Complainant | Respondent |
Anonymised Parties | A Clerical Officer | A Credit Union |
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-00019197-001 | 15/05/2018 |
Date of Adjudication Hearing: 12/02/2019 and 09/04/2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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 Complainant was employed by the Respondent as a Clerical Officer from 1 April, 2006 until 29 December, 2017 when his employment was terminated. The Complainant claims that he was constructively dismissed from his employment as a result on ongoing bullying and victimisation in the workplace. The Respondent denies that a dismissal occurred and contends that the Complainant resigned from his position of his own volition without fully exhausting the internal grievance procedures. |
Summary of Complainant’s Case:
The claimant started work with Respondent on 1 April, 2006. In 2014, the Respondent appointed Ms. A as Manager responsible for operations at the Credit Union where the Complainant was employed. On 25 October, 2014, the Claimant was admitted to hospital following a tonic clonic seizure. Despite this, the Complainant returned to his employment in mid-November, 2014. As per the terms of his Contract of Employment, he worked a three-day week. However, and upon his return from sick leave in November, 2014, the Complainant was advised by Ms. A to reduce his working week from three to two days. Such a change would involve a significant reduction in the Complainant’s income which he could not afford, and he opposed the said proposals being made by the Respondent. He indicated that he would continue to be flexible and assisted the Respondent as far as practicable and made certain counter proposals, however, same were rejected. The Complainant continued to be pressurised and Ms. A refused to sign and/or endorse his Social Welfare Certificates in respect of the days in which he was not working resulting in an immediate loss of three days Social Welfare entitlement totalling a sum of €215.00 per week, which said loss, the claimant could not sustain. The Respondent operated a continuous and consistent system of pressure and coercion in order to force the Complainant to reduce his working week from three to two days. In or about the month of April, 2015, the Complainant gave notice of holiday leave to Ms. A for the purposes of his attendance on a religious pilgrimage. Despite the Complainant furnishing the Respondent with six weeks’ notice of his intended holiday leave, Ms. A refused his request without any reasonable explanation or basis. In or about the month of June, 2016, the Complainant returned to his employment with the Respondent, having obtained a good recovery. Despite the foregoing, the Complainant’s work was consistently criticised. His performance was compared unfavourably to that of others, despite the fact that their duties were different. In that regard, Ms. A criticised the Complainant for having fewer transactions than a fellow employee without any recognition and/or consideration that the profile of the respective duties was dissimilar. To that end, the Complainant identified that he was assigned more time-consuming tasks, such as loan approval and loan draw down when compared to his comparative colleague. The Claimant felt that this criticism was unwarranted and that he was singly picked out from the other employees at a time upon his return when he was both fragile and/or at risk of relapsing. On or about the month of February 2017, the Complainant sought to take annual leave on Saturday, 25 March, 2017 in order to facilitate his attendance at his grandson’s christening. Again, this request was refused by Ms. A, despite the fact that the Complainant had facilitated the Respondent on prior Saturdays agreeing to cover the annual leave of two other employees. Further, the Respondent, being aware of the fact that the Complainant was a supporter of the GAA and having previously facilitated his taking of annual leave for the All Ireland Club Hurling Final, refused the Complainant’s request in 2017 and specifically required the Complainant to work Saturday, 18 March, 2017. Further and in or about the month of December, 2017, the Complainant requested annual leave, however, this was refused without any explanation and while management facilitated such annual leave for other employees who had sought such leave subsequent to the Complainant herein. The Respondent continued to pressurise the Complainant and demanded that he work on Saturdays throughout 2016/2017 and refused his contractual entitlement to one Saturday off in every four. This requirement made little to no sense to the Complainant given circumstances where a large portion of his work involved dealings with a financial institution which was not open on a Saturday and, as such, impacted adversely on the Complainant’s productivity. In or about the month of January, 2016, the Complainant was unable to tolerate the level of pressure and/or stress associated with his employment and his health had significantly deteriorated resulting in his being certified unfit to work. While the Complainant was out on certified sick leave, the Respondent placed an advertisement in a local paper seeking a full-time employee for the Respondent Company. It is the Claimant’s understanding that no such employee was hired and/or interviewed, and it is the Complainant’s belief that this advertisement was used as an attempt by the Respondent to discourage the Complainant from returning to his employment. During the currency of the Complainant’s employment with the Respondent, certain transactions were carried out by employees of the Respondent and/or tolerated by management, on a regular basis, which may not have been strictly in accordance with Regulations established by the League of Credit Union and/or in compliance with internal procedures. Despite the foregoing, the Respondent focused on the Complainant and consistently criticised any error which may have occurred, while raising no criticism and/or objection in respect of any other employee. These criticisms were personal in nature, unrecorded and did not result in any disciplinary action. Further and upon his return to employment in 2016, the Complainant’s duties were reduced, and his responsibilities became more limited. In that regard, the Complainant’s loan approval limit was disallowed, resulting in the Complainant not being able to approve even secured loans. No explanation was furnished for this restriction and/or, in effect, demotion in his role within the Respondent Company. These actions caused embarrassment to the Complainant and were wholly unwarranted, unjustified and were implemented without consultation with or explanation to the him. Similarly, certain discretionary decisions were removed from the Complainant solely and not from other employees and, again, this act was commissioned without any explanation and/or reason proffered by the Respondent herein. In or about the month of December 2017, a minor error occurred in which the details of a payee were incorrectly recorded on an instruction dated November 2017. Despite the fact that the Complainant identified the error and acknowledged same to the relevant member and apologised for same, the Respondent deemed such a mistake to constitute misconduct and a major offence and applied a verbal warning to the Complainant’s file. The Complainant received notification of this decision by letter dated 1 December, 2017 and, thereafter, appealed the finding indicating that this was yet another attempt by management to discredit the him within his working environment. In addition, the Complainant submitted that he was being constantly scrutinised on work transactions and was under constant pressure by the Respondent and was of the view that his reputation and/or integrity was being unfairly tarnished. The Complainant submitted that other staff members had made similar errors in the past, however, no action was taken by the Respondent against them. As a consequence of the foregoing, the Complainant instituted a formal Grievance Procedure and, in particular, wrote to the Chairman, Mr. C of the Respondent under letter dated 9 November, 2017. The Complainant sought investigation of all the aforementioned issues and, in particular, alleged that he had been repeatedly victimised, marginalised, bullied and discriminated against at work. Further, the Complainant complained that this treatment had had a detrimental effect on his physical and psychological health. Despite the foregoing, no review and/or further steps were taken by the Respondent to address the issues and/or grievance raised by the Complainant. As a result, the Complainant became despondent and was very upset by the lack of support from his employer. The Complainant felt that the Board of Management endorsed the acts of the management and, as a result, the Complainant was of the view that his employer had lost faith and confidence in him as an employee. In consideration of the foregoing, the Complainant was constructively dismissed and tendered his resignation by letter dated 29 December 2017. |
Summary of Respondent’s Case:
The Complainant commenced his employment with the Respondent on 1 April, 2006 as a Clerical Officer. Upon suffering a medical condition in April, 2014, the Complainant’s working hours were reduced, on consent to 18.75 hours per week across three days a week. At the beginning of January, 2016, due to a member of staff leaving and the imminent introduction of new software that would streamline certain matters, the Respondent sought to increase the Complainant’s hours to 20 hours per week over a four day period. The Complainant raised issues with the increase of hours and a meeting was held with him on 7 January, 2016 to listen to his concerns wherein he was asked to detail same in writing. On 9 January, the Complainant went on sick leave. The Complainant alleged that he began suffering from work related stress after losing his jobseekers allowance following the increase in his hours by the Respondent, as explained in his letter to the Respondent’s Board dated 12 January, 2016. On foot of the matters raised in this letter, the Respondent requested the Complainant to attend an occupational medical assessment on 20 January, 2016. The Complainant having been assessed was deemed fit to return to work and the doctor noted that he showed no medical condition which would bar him working a four-day week for the foreseeable future. Despite the doctor’s assessment, the Complainant ultimately failed to return to work and remained out on sick leave. On 23 February, 2016, the Complainant wrote to the Chairperson of the Respondent’s Board asserting that he was still suffering from work related stress, despite the Doctor’s report. In his letter, the Complainant submitted a formal grievance that due to the Respondent’s actions of increasing his working week to four days, it in turn caused him to lose €215 a week in job seekers allowance and ultimately was detrimental to his health. The Complainant returned to work in June, 2016. On 22 June, 2016, a staff liaison meeting was held to discuss the Complainant’s return to work and the grievance submitted in February, 2016. During this meeting the Complainant’s working arrangements were discussed, and three options were explored so to ameliorate his issues with the layout of his hours: a) Work 18.75 hours per week over 2.5 days b) Work 24.5 hours per week over 3.5 days (which could increase to 25 hours) c) Early retirement The Complainant rejected the suggestion of early retirement but agreed to consider the remaining two options. The meeting concluded where the Complainant agreed to the 3.5-day week provided he would have Mondays off so as to attend his medical appointments. In addition, the Complainant requested a wage increase of €1 per hour. The Complainant was told that the Respondent would need prior approval from the finance committee before any guarantee could be given. Furthermore, the Complainant noted that he would revert back to Ms. A to finalise the matter in the upcoming days. On 24 June, 2016, Mr. B (former Chairman of the Board) met with the Complainant and informed him that the finance committee had agreed to a 3.5 day week with Mondays off, however it was stated that this could not be a permanent arrangement, as he may be required to work certain Mondays out of necessity. In addition, the Complainant was informed that his salary increase request was rejected to which the Complainant accepted and agreed to remove his outstanding issues regarding this matter off the table. It was the absolute understanding of the Respondent that any issue which the Complainant had at that juncture, had now been resolved. On 9 November, 2017, the Complainant wrote to the Respondent wishing to invoke the grievance procedure to have the following matters dealt with: · Following his stroke and reduced working hours, Ms. A had refused to sign his social welfare certificates causing him to lose €215 per week. · The Respondent rejected his holiday request on multiple occasions. · The Complainant was constantly being compared to others and had his faults pointed out to him on a persistent basis. The Complainant stated on foot of the above, he felt marginalised, victimised, harassed and bullied. On 17 November, 2017, the Respondent wrote to the Complainant acknowledging receipt of his grievance received on 10 November, 2017. The Respondent notified the Complainant that an investigation would be carried out and furnished him with a copy of the Respondent’s Grievance Procedure. On 4 December, 2017, the Respondent sent a letter to the Complainant requesting that he particularise the exact nature of his grievances so as to allow a full review of his situation. On 18 December, 2017, the Complainant’s solicitor sent a letter to the Respondent threatening a personal injury claim against the Credit Union and Ms. A. To avoid such, they requested that the Complainant be compensated for the psychological injury that had been caused to him over the preceding several years. On 29 December, 2017, the Complainant resigned from his role with the Respondent. Submissions The Respondent submits that any grievances raised by the Complainant throughout his tenure were handled promptly and in accordance with the internal grievance procedures. However, in this instance the Complainant chose to resign a mere month and a half after he submitted his original complaint on 9 November, 2017 and failed to respondent to the Respondent’s request to furnish further details regarding his complaint on 4 December, 2017. The Respondent submits that throughout the Complainant’s tenure, it is clear that the Respondent at all times tried to resolve his grievances. When the Complainant initially suffered a stroke in 2014, the Respondent accommodated his inability to work a full week by reducing his hours to a three-day week going forward. However, in January, 2016, due to pressing work demands, the Respondent increased the Complainant’s working hours to a four day week, which resulted in the Complainant losing his social welfare payment of €215 per week. Following this, the Complainant raised a grievance in relation to his loss on 16 January, 2016 whilst out on sick leave. However, during this period the Complainant remained absent from work preventing any investigation therein. Upon his return, the Complainant was immediately engaged by the Respondent in a staff liaison meeting whereby he agreed to have his hours increased to 26 hours weekly. The Complainant advised that he was satisfied with the outcome and on foot of this, the Respondent could only assume that all was in order. The Respondent referred to two tests, namely the “reasonable test” and “contract test” contained in the statutory definition of “dismissal” within Section 1 of the Act, either or both of which may be invoked by an employee in a constructive dismissal case. In relation to the “reasonable test” the Respondent submits that the Complainant has failed to meet the requisite burden of proof to satisfy this test. Following the Complainant’s grievance on 9 November, 2017, Ms. A, the Manager at that time, who several allegations were made against, provided a response to the Board in relation to the matter. Ms. A accepted that she refused to sign off on the Complainant’s social welfare payments. However, she noted that this was to avoid implicating the Respondent by providing misleading advice to the social welfare authorities. At the time the Complainant was on jobseekers’ allowance, the Respondent was regularly offering additional hours to all staff to which the Complainant never accepted. As a result, Ms. A felt that the Complainant placed both her and the Respondent in a very a difficult position. It was on that basis to which she refused to sign off on said payments. Secondly, the Complainant details in his grievance dated 9 November, 2017 that he was victimised in comparison to other staff members in respect of his annual leave. The Respondent contends that its internal procedure provides that all staff are asked to submit their two-week main holiday break in the first quarter of the year. Importantly, for teller roles, only one member of staff is permitted to be on annual leave at any one time. The Respondent submits that the only reason the Complainant’s requests for annual leave were refused was due to the fact that other staff members had already been approved for annual leave prior to his requests on the material dates in question. Insofar as the Complainant’s contention that he was assigned more time-consuming tasks subsequent to his updated job description, the Respondent submits that his new role of Clerical Officer required under minimum competency role that he had ACCUP Diploma training. The Complainant was the only individual outside the Clerical Officer role who had this diploma and the increase in duties was reflective of his qualifications and ability. Finally, the Complainant’s allegation that he was stripped of his duties/responsibilities upon his return from sick leave in June, 2016, the Respondent refutes this claim and notes that this was merely a part of the introduction of new internal regulations and the Complainant being issued with a new job description. Notwithstanding the replies that Ms. A had supplied to the Board on sight of the Complainant’s grievance letter dated 9 November, 2017, the Complainant failed to allow the internal grievance process to take place and instead ignored the request for additional information and resigned without exhausting the internal process. In relation to the “contract test”, the Respondent refutes any allegation that there was any breach to the Complainant’s contract by increasing his hours in January, 2016. Despite his allegations, the Complainant was not targeted by the Respondent but rather this change was necessitated by the loss of another employee the month previous and the increase in his hours was the immediate solution to supplement the shortfall in labour. Furthermore, upon review by the Doctor in February, 2016, he clearly noted that the Complainant was more than able to discharge his contractual duties over a four day period and there was no medical justification to say otherwise. Although the Complainant rejected the Doctor’s findings, the Respondent still tried to accommodate the Complainant by holding a meeting so as to address his immediate concerns. As a result, the Complainant accepted a revised schedule of 25 hours over a 3.5-day week. Following this agreement, the Complainant agreed to take the remaining issues off the table. The Respondent submits that if it was such that the Complainant remained unhappy about this change to his contractual hours, the fact remains that he continued with his employment under the revised schedule for a further 18 months before he submitted his resignation. The Respondent submits that in light of the foregoing, the Complainant has failed to establish a claim of constructive dismissal under both the “contract” and “reasonableness” tests. The Respondent relied upon the following cases in support of its position, namely: Cosgrave -v- Kavanagh Meat Products Limited UD6/1988, Western Excavating (ECC) Limited -v- Sharp [1978] ICR 221 and Byrne -v- RHM Foods (Ireland) Ltd UD69/179. |
Findings and Conclusions:
As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment. The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that: ““dismissal”, in relation to an employee, means— (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in 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.” The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[1]. It comprises of two tests, referred to as the “contract” and the “reasonableness” tests. It summarised the “contract test” as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The “reasonableness test” assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties. The Complainant is relying on both tests to ground his claim. In relation to the “reasonableness test” the Complainant contends that he had been subjected to bullying, unfair treatment and victimisation in the workplace by his immediate Manager, Ms. A, over a sustained period of time prior to his resignation which included the unwarranted refusal of annual leave, changes to his contractual working hours, reduction of duties and responsibilities, the assignment to him of more time-consuming tasks compared to other colleagues and subjecting him to an unreasonable disciplinary sanction prior to his resignation. The Complainant contends that his treatment by Ms. A was carried out with the intention of forcing him to resign his position and that he sought to have these matters addressed through the internal grievance procedures in November, 2017. The Complainant contends that the Respondent totally disregarded his formal grievance and failed to investigate the matter in accordance with its established grievance procedures which ultimately left him with no other alternative but to resign from his employment. The Respondent disputes the Complainant’s contention that his position was untenable and contends that he acted totally unreasonably in resigning from his employment without fully exhausting the internal grievance procedures in relation to the issues that were causing him concern in relation to his employment. The Respondent contends that the Chairman of the Board, Mr. C, was in the process of investigating the formal grievance which the Complainant had raised on 9 November, 2017 and had sought additional information from him in relation to the matter but that the Complainant chose to resign with allowing the grievance process to conclude. It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of their employment other than to terminate his or her employment. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his or grievance with their employer. The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A.[2] that: ”In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”. The Employment Appeals Tribunal in the case of An Employee v An Employer[3] held that: “In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.” In considering this issue, I am satisfied that the Respondent had an established Grievance and Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[4]. Having regard to the evidence adduced, I find that this policy was brought to the Complainant’s attention during his period of employment and that he was fully aware of its existence. It was not in dispute that the Complainant had a very difficult working relationship with his Manager, Ms. A, and the Complainant adduced evidence that he had been subjected to bullying, unfair treatment and victimisation by her in the workplace over a sustained period of time prior to his resignation. It was as a result of these issues that the Complainant invoked a formal grievance on 9 November, 2017 by referring a complaint to the Chairman of the Board, Mr. C. I note that the Complainant’s grievance was acknowledged in writing by Mr. C on 17 November, 2017 and that he sought further clarification from the Complainant in relation to certain issues relating to his grievance on 4 December, 2017 in order to allow a full review of his complaint. Mr. C adduced evidence that he did not have an opportunity to act more expediently on this matter as he had been away on holidays for approx. two weeks prior to that date. The Respondent disputes that the Complainant was subjected to the alleged treatment by Ms. A and it adduced in evidence the minutes of a meeting dated 20 November, 2017 that had been conducted between Mr. C and Ms. A as part of the investigation into the Complainant’s grievance. It is clear from the minutes of this meeting that Ms. A denied the allegations made by the Complainant and put forward explanations to refute each of the alleged instances of bully and harassment. Given that Ms. A has left the Respondent’s employment and did not attend the hearing to adduce evidence, I accept that I can attach very limited evidential weight to the explanations attributed to her in these minutes by way of rebuttal of the allegations raised in the Complainant’s grievance. However, notwithstanding the foregoing, I accept that this meeting did in fact take place and I am satisfied that it corroborates the evidence given by Mr. C that the Complainant’s grievance was being treated with the utmost seriousness and that Mr. C was in the process of conducting an investigation into the matter in accordance with the established internal procedures. I have also taken cognizance of the fact that the Complainant had been issued with a verbal warning by Ms. A on 1 December, 2017 in relation to an error in recording a transaction which was deemed to be an act of misconduct. The Complainant accepts that this error occurred. However, he did not accept that this sanction was warranted or appropriate in the circumstances and subsequently submitted an appeal in relation to this matter in accordance with the internal grievance and disciplinary procedures. Having regard to the evidence adduced, I am satisfied that the Complainant resigned from his position prior to the appeal and the conclusion of the internal process in relation to this matter. I also note that the Complainant was fully aware prior to his resignation on 29 December, 2017 that his Manager, Ms. A, was leaving her employment with the Respondent. It was not in dispute that the Complainant had engaged in discussions with Ms. A’s replacement, the incoming Manager, who had asked him to reconsider the decision to resign and provided an assurance that he would work with the Complainant to try and resolve any workplace difficulties that he was experiencing. The Complainant adduced evidence that he could not countenance remaining in his position at that juncture as his health was being affected and therefore had no option but to resign. In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to fully exhaust the internal procedures to try and resolve the workplace related grievances which arose during his employment before taking the step to resign from his employment. However, it is clear that the Complainant failed to engage with Mr. C in relation to the investigation of his grievance and despite the assurances provided by the incoming Manager that these workplace difficulties would be addressed, he ultimately resigned from his position on 29 December, 2017 before the internal grievance process had been concluded. I must also address the contention raised by the Complainant that the severance agreement which he was offered on 2 November, 2017 constitutes further evidence that the Respondent wished to terminate his employment and force him out of his position. I am satisfied that the offer of a severance agreement arose in the context of an independent review in relation to the internal work practices and related issues within the Credit Union which was being undertaken by an external HR Consultant following the appointment of Mr. C to the position of Chairman of the Board in April, 2017. It was common case that the HR Consultant had engaged and met with all staff members, including the Complainant, as part of this review. The Complainant adduced evidence that he had informed the HR Consultant about his workplace related difficulties during this engagement and had indicated that he would be prepared to consider a redundancy/severance package as a means of resolving these issues. I am satisfied that the HR Consultant raised the issue of a severance agreement with the Board having obtained the consent of the Complainant to do so and following which the offer of a severance agreement was made to him, which he subsequently refused on the basis that the terms offered were not acceptable. In the circumstances, I cannot accept that the offer of a severance agreement to the Complainant and the manner in which this issue occurred could reasonably be construed as an attempt by the Respondent to make his position untenable or force his resignation. It is also well established that there can be situations in which a failure to invoke the internal procedures in relation to a grievance will not be fatal in circumstances where it is established that an employee could not have faith in the employer’s ability to properly or effectively address his/her grievances (see Liz Allen -v- Independent Newspapers[5], Moy -v- Moog Ltd[6], and Monaghan -v- Sherry Bros[7] and New Era Packaging -v- A Worker[8]). However, in the instant case, I am not satisfied that there were factors present which might excuse the Complainant’s failure to invoke the internal grievance procedures before resigning. The Respondent had a grievance procedure in place and the Complainant was fully aware of its existence. Indeed, I note that it was not in dispute that the Complainant had previously utilised the Respondent’s internal grievances procedures in January, 2016 in relation to a dispute concerning the proposed increase of his contractual weekly working hours and that this matter was subsequently resolved between the parties on conclusion of the process. Having regard to the totality of the evidence adduced, I find that the standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met where the Complainant failed to exhaust the procedures available to him before taking the step to resign, thereby not providing the Respondent with an opportunity to address his grievance in a proper manner. In relation to the “contract test” the Complainant has claimed that the Respondent breached a number of the essential terms of his contract of employment. The matters which the Complainant has relied upon in support of this contention include the claims that 1) the Respondent failed to follow the designated internal grievance procedures which were provided for in his contract of employment in relation to the manner in which it dealt with the formal grievance he raised prior to the termination of his employment and 2) that the Respondent imposed a unilateral change to his weekly working hours. In relation to the former point, I have already indicated in my findings above, that I do not accept the Complainant’s contention that the Respondent failed to follow the internal grievance procedures in terms of the manner in which it dealt with the formal grievance that he raised prior to the termination of his employment. In relation to the latter point, I note that it was not in dispute between the parties that the Respondent sought to increase the Complainant’s contractual weekly working hours in January, 2016 following the loss of another staff member at that juncture. It is clear that the Complainant was not amenable to the proposed change to his working hours and proceeded to invoke a formal grievance in relation to the matter at that juncture. The Complainant was subsequently absent from work on sick leave from January to June, 2016. However, I am satisfied that the Respondent dealt with the Complainant’s grievance through the established internal procedures upon his return to work and that the matter was resolved by agreement of both parties in June, 2016. It was common case that the Complainant agreed to work a revised schedule of 25 hours over 3.5 days per week and that he continued to work on this basis until the termination of his employment. In the circumstances, I cannot accept that the changes to the Complainant’s contractual hours, which were mutually agreed between the parties, constituted a significant breach going to the root of his contract of employment. Having regard to the foregoing, I find that there was no evidence to suggest that the Respondent was guilty of conduct which amounted to a significant breach going to the root of the contract of employment, or which demonstrated that the Respondent no longer intended to be bound by one or more of the essential terms of the contract. Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that he had no option but to resign his position or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. In the circumstances, I find that the Complainant resigned from his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that his complaint cannot succeed. |
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.
I find that the Complainant resigned from his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that his complaint cannot succeed and therefore is not well-founded. |
Dated: 29.07.2019
Workplace Relations Commission Adjudication Officer: Enda Murphy
Key Words:
Unfair Dismissals Act, 1977 to 2015 – Section 1 – Constructive Dismissal – Contract Test – Reasonableness Test – Resignation - Complaint Not Well Founded |
[1] [1978] 1 All E.R. 713
[2] UDD1636
[3] UD1421/2008
[4] S.I. No. 146/2000
[5] [2002] 13 ELR 84
[6] [2002] 13 ELR 261
[7] [2003] 14 ELR 293
[8] [2001] ELR 122