ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018056
Parties:
| Complainant | Respondent |
Anonymised Parties | A leisure centre manager | An hotel |
Representatives | Siobhan McLaughlin Citizens Information Centre | IBEC |
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-00023236-001 | 15/11/2018 |
Date of Adjudication Hearing: 17/09/2019
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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 complainant had allegations made against her in relation to various issues including theft. She is claiming constructive dismissal based on the conduct of the respondent in handling the issue. |
Summary of Complainant’s Case:
The complainant commenced work on 21st January 2014 as Leisure Centre manager, initially covering maternity leave. Following a period of receivership ownership of the hotel transferred to the respondent. An issue arose in October 2017 involving a formal complaint made by another member of staff against the complainant to the General Manager, which involved inappropriate behaviour and theft. The complainant was shocked and felt that the complaints had been motivated by that fact that she had informally disciplined the same member of staff due to his conduct at work. The complainant was subject to formal investigative meetings conducted by the General Manager and the Duty Manager. These took place on 9th and 24th of October and 2nd November. She was not informed in advance in writing of the precise nature of the allegations. The initial issues investigated related to; 1) Failure to report an incident, 2) Misuse of attendance records; 3) Theft/aiding in theft; 4) Falsification of documents and 5) Discrimination in the work place. The complainant explained that money alleged to be stolen, which was in her drawer, was in fact related to a lotto syndicate amongst employees and members of the leisure centre. Following the investigations the complainant was invited to a disciplinary hearing to be held on 21st December 2017 relating to 1) Material neglect of Company rules and 2) Persistent poor job performance. The complainant alleges that her employer failed to make any findings in relation the initial allegations and simply changed these to other allegations. At the same meeting she informed the respondent that she would be going on sick leave on the grounds of work related stress. Following several months on sick leave due to stress the complainant resigned on 18th May 2018 on the basis of constructive dismissal due to the respondent’s conduct. The complainant was subjected to a two month investigation and, when it became apparent to the respondent that there was no basis to the initial allegations, she was subjected to a disciplinary process on new issues that had not been previously raised with her. The letter inviting her to the disciplinary hearing included the sentence ‘this may be considered an act of gross misconduct. If this is founded it may result in immediate dismissal’ The complainant submits that the respondent’s actions constitute a fundamental breach of trust forcing her to resign as it was clear that the respondent was determined to unfairly dismiss her from her post. |
Summary of Respondent’s Case:
The complainant commenced employment with the respondent in January 2014 and resigned from her position on 18th May 2018. In September 2017 the respondent received a number of complaints from another employee ( Mr B) relating to the complainant, including theft, misuse of recording attendance and falsification of documents. In turn, on 3rd October 2017 the complainant raised a formal grievance against Mr B relating to harassment. The respondent confirmed to the complainant on 16th October that they would be investigating her complaint in relation to Mr B. This investigation subsequently took place and Mr B was eventually dismissed following a disciplinary hearing. The complainant was written to on 16th October detailing the issues to be investigated in relation to the complaints against her and arranging a date to meet on 24th October. Due to the complexities of the issues a second investigatory meeting was considered necessary which took place on 2nd November. Following this meeting the complainant went on sick leave and only returned to work on 1st December 2017. Arising from the investigation the complainant was invited to a disciplinary hearing to take place on 19th December. The two issues specified to be addressed at the hearing were; material neglect of company property and; persistent poor performance. These allegations had been distilled from the previous investigation meetings. Following the disciplinary hearing the complainant went on an extended period of sick leave. The outcome of the disciplinary hearing was written warnings in relation to both issues and this was notified to the complainant by letter of 21st December 2017, including informing her of her right to appeal. On March 20th 2018 the Respondent contacted the complainant to arrange a review meeting regarding her health and arrange a return to work, including the opportunity to raise any concerns she may have had. A further similar letter was sent on 23rd April arranging a meeting for 1st May which the complainant did not attend. The complainant tendered her resignation on 18th May to which the respondent replied by email inviting her once again to meet. The complainant declined this offer on 30th May and outlined certain grievances. The respondent wrote on 2nd June inviting her to discuss these issues but the complainant replied stating she would not attend. The respondent contends that it was not reasonable for the complainant to terminate her contract in circumstances where the respondent was following its own procedures. The complainant was not entitled to resign from her position on the grounds of constructive dismissal in circumstances where she was issued with a written warning and where she had failed to exhaust internal company procedure particularly where she was given the opportunity to appeal the disciplinary sanction. |
Findings and Conclusions:
Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including: ‘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,’ Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee. In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice. Not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case. The complainant contends that she was constructively dismissed. It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and secondly, whether the conduct of the respondent was so unreasonable that the Complainant had no alternative but to tender her resignation. There is no suggestion that the respondent was in breach of an essential term of the contract and therefore the focus must be on whether or not the conduct of the respondent met the test of being so unreasonable that the complainant had no alternative but to resign. The respondent was quite correct in determining that the various complaints against the complainant needed to be investigated. In this regard I note that no issues of performance had been brought to the complainant’s attention prior to the investigatory and disciplinary processes. It is clear that in at least one of the issues complained of – the refund of subscription – the complainant was unaware that she did not have the authority to take that decision. In the absence of a clear job description I don’t think it is reasonable to jump to a disciplinary process where it is alleged an employee has exceeded her authority. The invitation to the disciplinary hearing alluded to the possibility of dismissal which I cannot conceive would have been an appropriate sanction in relation to the two issues proposed to be discussed at the hearing.
The respondent’s disciplinary procedure states as follows; Para 3.3.1.9 Once all investigatory meetings are complete, the Investigating Officer(s) will fully consider their findings and recommendations, which will normally be summarised in a written investigation report. The Investigating Officer will submit this report together with relevant witness statements, associated comments, etc. the Disciplinary Panel, who will review the recommendations with management to determine the most appropriate course of action which may include; No further action being taken Informal action being taken to address the matter You being suspended or The formal disciplinary procedure being invoked. Para 3.3.1.10 You will be advised in writing of the Investigation Panel’s recommendations, normally within 10 working days of the investigation being completed. If the formal disciplinary procedure is to be invoked, you must be clearly advised of this. In evidence the respondent confirmed that no formal report was prepared. In evidence it was confirmed that the respondent had concluded by 12th Nov 2017 that there was no substance to the allegation of theft. However, this outcome was not confirmed to the complainant until the Disciplinary Hearing on 15th December when she requested an update on that particular allegation and was informed that it was not being pursued. In these circumstances it is clear that the respondent did not comply with its own procedures. In my view it is not acceptable that someone should have to wait for a month before being informed that the investigation had concluded that the grievous allegation of theft had been determined to have no substance and was not being pursued further. Secondly, the items referred to in the invitation to the disciplinary hearing could have been reasonably seen by the complainant as new issues and possibly construed as evidence of the respondent’s determination to dismiss the complainant at some stage. In light of her experience in this instance the complainant was entitled to view the grievance procedure relied upon by the respondent as meaningless. The respondent cannot rely upon the mere existence of a written grievance procedure if the respondent does not adhere to the terms of the procedure.
Accordingly, I conclude that the ‘ reasonableness test ‘ which asks whether the employer has conducted his affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer has been met. The respondent contends that the complainant had additional earnings subsequent to leaving her employment as evidenced from various ads in relation to her business. From the evidence provided I believe that these earnings were no more than €1000 and therefore I have deducted that amount from the compensation payable. I also note that the complainant secured an alternative position at a higher salary commencing one year after she left the respondent’s employ. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the
I find the complaint in relation breaches of the Unfair Dismissals Acts1977 - 2015 is well founded and I order the respondent to pay the complainant €15000 in compensation. |
Dated: 23rd October 2019
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Constructive dismissal. Disciplinary investigation process |