ADJUDICATION OFFICER DECISION and RECOMMENDATION
Adjudication Reference: ADJ-00027075
Electrical Goods distributor
Complaint and Disputes:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 25/08/2020
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969, following the referral of the complaint and disputes to me by the Director General, I inquired into the complaint and disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and disputes.
The complainant started working for the respondent as a Credit Analyst on 25 October 2019 and says he did not receive a contract, in contravention of the Terms of Employment (Information) Act, 1994. Under the Industrial Relations Act he raised disputes that he was bullied and harassed and the employer failed to deal with his complaints. This meant he had no choice but to hand in his notice and leave his employment, amounting to constructive dismissal. His final day of service being 14 February 2020. His salary was €40,000 per annum.
As the two disputes raised under the Industrial Relations Act are interlinked I took evidence on them together.
Summary of Complainant’s Case:
The complainant says he got a summary letter of his terms and conditions of employment before he commenced employment with the respondent in October 2019 but he never received a contract of employment. The respondent told him it was sent via the internal information network but he says he did not receive it. He only got a contract after he raised issues about his employment in January 2020.
CA-00034762-001 & CA-00034763-001
The Worker says he was bullied from the time he started by his line manager (Ms A) and he gave evidence of a number of incidents with Ms A which he considers amount to bullying. He verbally brought these to the attention of HR and a senior manager and threatened to resign. He was told the employer was dealing with the situation and asked not to put anything in writing. Then Ms A left the employer and he agreed to stay on.
He submits he was then bullied by his new line manager (Mr B) and he wrote a complaint to Mr B. HR then produced his contract of employment and asked him to sign it. He refused to do this without reading it fully. He also requested a copy of the Employee Handbook but this request was ignored. Because of the stress at work he went on sick leave. He then wrote a complaint to the CEO and MD and was told he had to go through the company’s procedure to HR. The employer proposed he went to their doctor before they investigated the complaint. He was also advised to get his solicitor to contact HR if he was not going through the HR process. During this period, when he was on sick leave, he handed in his notice and felt he had no option but to leave.
The worker says he had not been made aware of the employer’s policies and procedures and how he should raise a grievance. However, he did make complaints, which were not investigated properly. Because of the stress caused by the bullying he went on sick leave and then considered, when the employer continued to fail to act on his complaints, he had no option but to leave his employment and this amounts to constructive dismissal.
Summary of Respondent’s Case:
The respondent says the complainant was sent an offer letter dated 17 October 2020 and he accepted it on the same date. This contained all the information required by the Terms of Employment (Information) Act, 1994 apart from the full address of the respondent. A contract was prepared for the complainant and uploaded on his first day of employment (25 October 2020). The complainant did not access the document. It is possible there was a systems error but a screenshot indicates the internal information network was waiting for the complainant’s Esignature. When the complainant raised a query about his contract in January 20120 it was resolved.
CA-00034762-001 & CA-00034763-001
The employer says the worker could, at any time, have accessed the Employee Handbook through the internal information network. They say the worker sent an email on 12 December 2019 making them aware of issues with Ms A and notified the employer he was resigning. The employer told the worker that matters were being addressed. Ms A left the employer on 20 December 2019.
On 20 January 2020 the worker informed them that he had another complaint and that he had an appointment with his doctor because of stress. On 27 January 2020 the employer sent an email to Mr B stating he was on sick leave because of work related stress. On the same day he sent an email to HR saying he wanted to make a formal complaint to the CEO and MD. He also proposed the employer pay him a “few month’s salary” for him to leave. HR replied confirming they had a grievance procedure and outlined the procedure. In a later email HR confirmed they were not aware of any earlier complaints. The worker submitted his resignation on 5 February. On 6 February the worker sent a complaint to the CEO and MD. He was asked to do this in accordance with employer’s procedures and he did this on 8 February. As he was on sick leave HR advised the worker he would have to be medically assessed to see if he was fit to participate in the investigation of his grievance. On 13 February he was advised a medical appointment was scheduled for 24 February. He responded that he would be leaving the employer with effect from 14 February 2020. He submitted his complaints to the WRC on 16 February 2020.
The employer says they believed issues in relation to Ms A had been dealt with when he withdrew his resignation. He did not raise a complaint in accordance with the grievance procedures until 8 February 2020. At that time he was on sick leave and refused to attend the company’s doctor to see if he was fit to participate in an investigation. Furthermore, he resigned before he submitted his grievance. They say he failed to go through an internal grievance procedure and this is unreasonable. He is therefore unable to show the employer was unreasonable as he needs to satisfy his claim of constructive dismissal.
Findings and Conclusions:
The Terms of Employment (Information) Act, 1994 section 1A states: “an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:
(a) the full names of the employer and the employee;
(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014 );
(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;
(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000 ;
(e) the number of hours which the employer reasonably expects the employee to work—
(i) per normal working day, and
(ii) per normal working week.”
The complainant received an offer letter prior to commencing employment which satisfied most of section 1A. Also, a Contract of Employment, which satisfied all the requirements of section 1A, was uploaded for the complainant on his first day of employment. It is not possible to be certain as to whether there was a system error or if the complainant chose not to access the uploaded document. However, I am satisfied the respondent complied with their responsibilities under section 1A of the Terms of Employment (Information) Act, 1994.
Claims under the Industrial Relations Acts
I have carefully considered the written and oral submissions made by the parties in relation to these disputes. These disputes were referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and concerns claims the employer failed to investigate the worker’s claims of bullying and harassment and of constructive dismissal arising from the failure to investigate the complaints.
Firstly, in relation to complaints against Ms A, I am satisfied that it was reasonable for the employer to conclude this matter was concluded when the worker withdrew his resignation and Ms A left.
Secondly, there was a good deal of email correspondence between the worker and the employer about Mr B but I conclude that the worker did not articulate his complaints in a manner that could be investigated by the employer until 6 February 2020. He was on sick leave at this point and did not return to work. Furthermore, he had resigned the previous day and his employment ended on 14 February 2020. I conclude that the employer has shown they would have followed their own procedures and investigated the complaints. However, the worker’s absence on sick leave and departure before returning to work made this impossible.
I am satisfied that this case may be informed by the Unfair Dismissals Acts in respect of constructive dismissal cases. The term “constructive dismissal” is not specifically mentioned in the Unfair Dismissals Acts. However, it is a term commonly understood to refer to that part of the definition in Section 1 of the 1977 Act. The burden of proof in such cases, which is a high one, rests with the complainant. The complainant must demonstrate that he was justified in his decision and that it was reasonable for him to resign his position. The complainant must also demonstrate that he had no option but to resign.
Having regard to the foregoing, I find that the worker has not established that the conduct of the Employer was such that he had no option but to resign his position. Accordingly, I find that the Worker was not dismissed, either constructively or otherwise, from his employment
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint and disputes in accordance with the relevant redress provisions under Schedule 6 of that Act and Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the disputes.
For the reasons given above I find that the complaint pursuant to Terms of Employment (Information) Act, 1994 is not well founded.
For the reasons given above I find that the Worker was not constructively dismissed from his employment. Accordingly, the Worker’s claim is not well founded and must fail.
For the reasons given above I find that the Worker has failed to show that the Employer refused to investigate his complaints. Accordingly, the Worker’s claim is not well founded and must fail.
Dated: 15th September 2020
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Industrial Relations Acts – constructive dismissal