Worker

Employer

Anonymised Parties

An Executive Assistant

A Company

Representatives

Robin Hyde Alastair Purdy and Co. Solicitors

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act 1969

IR - SC – 00002391

21/3/24

The Worker worked for the Respondent as an Executive assistant.

The Worker worked for the Employer from 6th September 2023 until 9th October 2023.

The Worker says he was forced to leave his job due to the conduct of his employer or others at work. He obtained an order for payment of his one week’s notice pay against the Employer from the Workplace Relations Commission.

The Worker says he was instructed by the CEO to wait until she came to him on 9th October 2023. He saw his colleagues being given tasks to do, but he was not given any work to do. This was a change from the usual routine.

The Respondent’s behaviour, cold tone and facial expressions made the Worker feel uneasy. The Worker could hear the CEO chatting to other colleagues and laughing. He felt excluded. The CEO came to see him after 5pm that evening. She shouted at him for ten minutes for not emailing her regarding a colleague’s resignation on 6th October 2023. The Worker was surprised as he was not requested to forward emails to the CEO previously, or in other resignation situations. The resignation email was emailed directly to the CEO. The shouting escalated into louder and offensive unprofessional swearing by the CEO. The Worker did not respond. However, due to the constant unreasonable yelling, high turnover rate of staff, and instances of unfair and discriminatory treatment due to his gender and race, he had to protect his mental health. He was forced to hand in his notice and resign. The CEO said the Worker’s resignation is effective immediately. She asked him to leave immediately and disable his work account. She did not wish him to work out his notice.

The Worker said he was singled out and reprimanded extensively over a resignation which was outside his responsibilities. Meanwhile other colleagues who were aware of the resignation, and Patricia who had access to the CEO’s email were not reprimanded or denied work. The CEO refused to assign him any work demonstrating her intent to remove him from his position.

There were other incidents. On 3rd October 2023, he was told to reorganise the entire office and asked to relay it to other staff. The staff were surprised and said the CEO usually asks them directly. The Worker was left to complete the entire workload himself. The CEO publicly shouted at him for leaving an empty box in the office. He received an email from the CEO about trying to contact him before 5pm saying he had gone home. However, he did not leave until after 5.15pm that day. He did not receive any contact from the CEO about the urgent issue.

The CEO imposed a 9-6pm work schedule whereas previously the Worker had some flexibility to leave early and take a shorter lunch break. The CEO refused to approve the Workers request for remote working once per week, in contrast with his two colleagues. The Worker began to feel anxious and worried that he might be dismissed. He was not provided with a proper laptop and monitor and had to use his own laptop. This contrasted with the treatment of other staff.

The Worker was enticed with promises to work on a particular programme, but this was inexplicably postponed. It was in contrast to the Workers colleagues who were allocated tasks. He was tasked with duties far beyond his job description such as HR, IT support and payroll. His colleagues were not requested to perform tasks outside their job descriptions. The CEO did not answer his calls when urgent issues arose. He had to ask another colleague to intervene who was able to contact her. He felt she selectively responded to communication which hindered his role and left him feeling marginalised and disregarded.

The Worker was asked to send the CEO documents regarding an employee’s dismissal which he sent on 4th October 2023. The CEO rang him ten minutes later in a cold accusatory voice questioning him. He told her the email was unread in her inbox, but she continued to claim it was not received. On 6th October 2023, the CEO said she would be in work later. However, when he spoke to the Manager regarding the time she would be in, the Manager said the CEO was working from home that day.

The Worker says two non-white employees were forced to bring WRC complaints against the company for non-payment and the discriminatory practices are systemic. He was replaced by a white female colleague who was employed on 3rd October 2023, when the treatment he received escalated.

The Employer now claims a mistake in the complaint form regarding their registered address. This claim is unfounded, as the same address has been used in previous Labour Court and WRC cases without any delays. It is an attempt to create an excuse for their misconduct and non-compliance with the process.

The Employers representatives submitted a letter of 16th September 2024 objecting to the hearing of the complaint. They submit the Worker lodged his claim under Section 13 of the Industrial Relations Act 1969, which affords the Employer the right to object to the claim being heard by the Workplace Relations Commission (“WRC”). The Employer only became aware of this case upon receiving direct notice of the Hearing from the Worker via email on 20 June 2024.

Prior to this communication, the Employer had not formally received any notice of the hearing or complaint due to an error in the complaint form, which incorrectly listed the Employers former registered address. This clerical mistake resulted in a significant delay in receipt of the relevant documentation, thereby precluding the Employer from exercising its right to object within the timeframe stipulated by the applicable procedural rules. We understand that procedural fairness, as guaranteed to all parties, includes the right to be properly informed and to have the opportunity to respond or object to any claim made under the Industrial Relations Act. Unfortunately, the address error compromised this essential aspect of due process, effectively prevent the Employer from participating in the preliminary stages of this matter e.g. exercising the right to object to the WRC’s investigation.

In light of these circumstances, we respectfully inform you that the Employer will not be attending the forthcoming Hearing. The Employer believes that attending the Hearing under these conditions would be inappropriate and inconsistent with the principles of procedural fairness.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Worker’s complaint was received by the Workplace Relations Commission on 21st March 2024. At the time the complaint was received, the address of the Employer was correctly stated on the complaint form.

The Employer was notified about the complaint by letter from the Workplace Relations Commission on 15th April 2024 to its registered office address.

S 50 of the Companies Act 2014 states:

(1) A company shall, at all times, have a registered office in the State to which all communications and notices may be addressed.

(2) Particulars of the situation of the company's registered office shall be specified in the statement delivered pursuant to section 21 (1)(a) prior to the incorporation of the company.

(3) Notice of any change in the situation of the registered office of a company shall be given in the prescribed form, within 14 days after the date of the change, to the Registrar who shall record that change.

On 15th April 2024 when the complaint was notified to the Employer by the Workplace Relations Commission and notification was provided of a twenty-one day period to object to the claim, the company was notified at its correct address. The company address was changed by the Companies Registration Office on 30th April 2024 when notice of the company change of address was received.

No objection was received from the employer within the requisite period as required under the Acts. As the Employer was correctly served with the complaint at its then registered office address, I proceeded to hear the complaint in the absence of the employer’s representative.

The Workers claims unfair dismissal pursuant to S 6 of the Unfair Dismissals Act 1977-2015 pursuant to S13 of the Industrial Relations Act 1969 that he has been constructively dismissed under Section 1 of the Act. The Act defines “dismissal” in relation to an employee as:

“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”.

In a claim of constructive dismissal, the onus rests on an employee to prove on the balance of probabilities that firstly, the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Worker was employed for a number of weeks as an Executive Assistant to the CEO from 6th September until 9th October 2024. He signed an employment contract dated 4th September 2023 which refers at paragraph 17 to the company grievance procedure set out in the Staff Handbook.

The Worker has set out various incidents of concern relating to communication and other issues in the days leading up to his resignation on 9th October 2023. He says was not given work to do on 9th October 2023 in contrast with other colleagues. He says he was shouted at by the CEO on 5th October and 9th October 2023 and the shouting of the CEO was so unreasonable that he no option but to resign. The CEO accepted the Worker’s resignation.

I am cognisant that the Worker was only employed for a short period. He submits there were difficulties in communication with management. The Worker was provided with a grievance procedure to allow him to raise issues of concern with his Employer so that any difficulties could be addressed. The Employment Appeals Tribunal in Conway v Ulster Bank (UD474/1981) highlights the obligation of an employee to act reasonably to bring their complaints to the attention of an employer through the company grievance procedure to allow the company an opportunity to attempt to resolve the complaints, prior to the Worker resigning.

The Worker had been suffering mental health issues and had brought this to the attention of the employer. However, he had only been employed for a short period when the incidents arose and have brought the issues to the attention of the company. In the circumstances, I find the failure of the Worker to invoke the formal grievance procedure is fatal to the claim. I make no recommendation in the case.