ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046886
Parties:
| Complainant | Respondent |
Parties | Lotfi Bouamama | CPL Solutions Limited trading as Covalen |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
| Mark Comerford IBEC |
Complaint:
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-00057708-001 | 14/07/2023 |
Date of Adjudication Hearing: 15/11/2023 and 24/04/2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that he was constructively dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of constructive dismissal. The Complainant must demonstrate that he was forced to terminate his contract of employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section 1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive dismissal in the statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the contract test where an employee will argue an entitlement to terminate the contract of employment because of a fundamental breach of the employment contract on the part of the Employer. The breach must be a significant breach going to the root of the employment contract.
Secondly, the Employee may allege that he satisfies the 1977 Act’s “reasonableness”test. That is that the conduct of the Employer was such that it was reasonable for him to resign. That is to say that the Employer has conducted it’s affairs so unreasonably that the Employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both Employer and Employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. The conduct of the Employer that is being complained of, must be unreasonable and without proper cause, and its effect on the Employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the Employee cannot be expected to put up with it.
In this particular instance I note that the Complainant herein has referred a complaint of having been unfairly dismissed from his place of employment (by reason of constructive dismissal) wherein he had worked for in excess of one year and is therefore entitled to bring this claim where an employment relationship must have existed for one year or more pursuant to Statute.
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would always have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”
Lastly, where an Employee has been dismissed, and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
This matter was heard over the course of two days by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021), I can confirm that the within hearing was conducted in line with the proposition that all hearings should be conducted fairly. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. The Specific Details of the unfair dismissals complaint herein are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 14th of July 2023. The Respondent raised a preliminary issue which went to the jurisdiction afforded me as the Adjudication Officer appointed to hear a matter which said matter has been brought outside the Statutory timeline. The Respondent submission reads as follows:- “A preliminary issue arises regarding the time limits provided for filing claims at the WRC under the relevant legislation. The Complainant submitted his complaint to the Commisssion on 14 July 2023 and therefore, the cognizable period for this complaint is between 15 January 2023 and the 14 July 2023. The Unfair Dismissals Act, 1977, Section 8 provides: - (2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period. As outlined in the Complainant’s complaint form, he has confirmed that he had left employment with the Respondent on 7 January 2023 …….. As outlined in the TMS provided at Appendix 2, the last day the Complainant worked with the Respondent was 4 January 2023 which is beyond the scope of the cognisable period as outlined above. Additionally, the Respondent wishes to highlight that they have not been made aware of any exceptional circumstances, as established in relevant case law, that would give necessity to the case proceeding beyond the scope of the time limits as outlined in the Act under which this claim has been pursued.” I accept the proposition that I, as Adjudicator, have to be satisfied that that the failure to present the complaint or refer the dispute within that initial six-month period was due to reasonable cause. It is permissible for me to extend the period for accepting a complaint up to twelve-months if reasonable cause is demonstrated. The Complainant brought two other matters under the Industrial Relations legislation, and these are dealt with separately and by way of a recommendation which will be anonymised. It made sense for me to allow the Complainant to give a full narrative of the events leading up to the constructive dismissal as the same set of facts would be relevant to the IR disputes raised. I therefore dealt with the Respondent’s preliminary issue in relation to the unfair dismissal issue at the end of the evidence provided by him. |
Summary of Complainant’s Case:
The Complainant was not represented and made his own case. When it came time to hear the Complainant’s evidence in respect of the Unfair Dismissal, the Complainant agreed to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 3rd day of April 2025 – this concentrated on the issue of delay as raised by the Respondent. The Complainant additionally relied on the full submission set out in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that he was unfairly dismissed by reason of constructive dismissal. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Summary of Respondent’s Case:
The Respondent was represented by the business representative group known as IBEC. The Respondent provided me with a written submission dated November 2023. The Respondent attended with a number of witnesses available to give evidence. The Respondent rejects that there has been a Constructive Dismissal. The Respondent challenges my jurisdiction to hear this matter in circumstances where the complaint issued after the expiration of six months from the date of employment termination. The Respondent asserts that the Complainant has not demonstrated reasonable cause. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
I have carefully considered the evidence adduced herein. The Complainant commenced his employment on the 7th of January 2019. The Complainant was engaged as an Operations Community Analyst. The Complainant had had a number of issues raised with him which led to disciplinary hearings. The first of these disciplinary hearings was commenced in and around August of 2022 with the outcome being given to the Complainant on the 8th of September 2022. The Complainant was given a six-month written warning at that time. I note that the Complainant did not appeal this decision. As I understand it, this disciplinary issue arose out of the seemingly intentional misuse of client tools In the aftermath of this process the Complainant states that he felt that his line manager (A) who had conducted the disciplinary process set about micro-managing the Complainant. This felt controlling and oppressive to him, but when he asked her about it, she stated that it related to the fact that he was under a six-month warning. When line manager A was away, her replacement B tended to treat the Complainant in much the same way. He felt closely watched. The Complainant felt that the treatment was calculated to humiliate him. The Complainant was particularly aggrieved when in October of 2022 line manager B took the Complainant aside and explained that she had a serious concern about his failure to use the in-house systems correctly. B told him that she was going to have to escalate this concern to HR. As I understand it, the Respondent works very closely with third party clients, and it is wholly responsible for ensuring that its own staff (including the Complainant) carefully followed and adhered to the systems and codes created by the client. There was no room for deviation. The Respondent is adamant that there were legitimate questions concerning the Complainant’s use of the Production Codes. The allegation this time concerned the incorrect use of company codes during working hours. The Complainant was upset at this development as he was already on a verbal warning and any further disciplinary action could, he knew, affect his job. The Complainant was also upset that B had blindsided the Complainant by taking him aside in the manner that she had, to tell him she was reporting the issue. Though I do note that the Respondent asserts that this was done to informally put the Complainant on notice of the fact that a matter was being escalated. The outcome of this second Disciplinary process (received on the 15th of December 2022) was a 12-month Final Written Warning which put the Complainant in a precarious position, and which he chose to Appeal. This Appeal was notified to a Mr. OM on or about the 21st of December 2022. The Complainant says that even before the outcome on this second Disciplinary process had been reached that he and B had clashed over his taking paid time off when he was due at an Investigation/Disciplinary meeting which had been set up. I cannot know whether there was anything deliberately done at that time. What is clear, however, is that the complainant felt that the manner of B’s reprimand amounted to an instance of workplace bullying. However, what is also clear is the fact that the Complainant had also, in this period, been looking to change jobs. It is not clear when the Complainant applied for another job with an alternative employer, but I understand that the Complainant received a job offer just after the outcome of the second disciplinary had been made known to the Complainant (15th December 2022). It is also worth noting that the Complainant was advised that that his new job would commence on the 4th of January 2023. As was his right the Complainant had exercised his entitlement to Appeal the said outcome of the second disciplinary process- which he did on the 21st of December 2022. The Complainant also chose to raise a Grievance against Line Manager B on the 23rd of December 2022. This Grievance was set out in an email and was wide ranging and included other issues such as an issue concerning the non-availability of overtime to him. I accept that even as he was planning to extricate himself from this workplace, the Complainant was well within his rights to raise a Grievance against a line manager and also to Appeal the outcome of a disciplinary process. Unfortunately, the Complainant seemingly emailed both issues to the incorrect email address – going through the 3rd party client address rather than the Employer address. This was not a fatal mistake but would give rise to delay over the Christmas period. And so it was, that there was delay in the two separate issues being picked up on in the Christmas period where a skeletal staff were operating. In fact, I have been told that Mr. OM had become unexpectedly unavailable so that the Appeal was not picked up by him in a timely manner. What is also true is that the next thing that happened is that the Complainant simply left the workplace on the 7th of January 2023 without following up with HR to see what had become of both the Appeal on the disciplinary finding and the grievance against the line Manager. A workplace relations complaint form issued on the 14th of July 2023. This is more than six months after the employment ended. The Respondent has requested that I refuse my own jurisdiction to hear this matter on the grounds that the Complainant has failed to bring the complaint within the six-month period directly after he resigned his role. On balance, I find that I have to accede to this request. I am particularly live to the fact that the Complainant conceded that he knew that there was a six-month time limit in operation. The Complainant’s language around stress and trauma was not convincing when he also gave evidence that he moved seamlessly from one job to the next. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00057708-001 – The complaint herein fails in circumstances where the complaint herein issues more than six-months after the constructive dismissal.
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Dated: 01/07/2025.
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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