Workplace Relations Commission (WRC) - RECENT Decisions & judgements
Decision Not Upheld
Constructive Dismissal Claim Unsuccessful
Complainant Failed to Follow Internal Grievance Procedure
Case Number ADJ-00004306
The Claimant submitted that her employer did not provide her with a statement fully setting out her terms and conditions of employment which were subsequently unilaterally changed by her employer in relation to working hours which were substantially reduced.
Furthermore, the Claimant submitted she was wrongly accused of theft. Her position became completely untenable and she was left with no option but to resign from her employment with the organisation. The Claimant submitted she was subsequently penalised as a result of bringing a separate defamation claim. In light of the above the Claimant submitted she could have no confidence whatever that her employer would deal with her fairly or in accordance with her contract of employment should she engage in the grievance procedure.
In response, the Employer submitted that the as soon as the error in regard to not issuing a contract of employment came to light, it was rectified very quickly thereafter. Evidence was given in relation to working hours and weekly changes / flexibilities. The Employer submitted there was nothing out of the ordinary in regard to the subsequent changes.
The Employer denied the allegations of unreasonable behaviour claiming the Complaint resigned voluntarily on the 27th May 2015. This was supported by considerable written and oral evidence.
In determination of its decision, the Adjudication Officer referenced that a simple matter concerning the alleged theft had got ‘completely out of hand and a lot of misunderstandings had been allowed to develop. A simple production of a receipt from the supplier showing that the Complainant had paid for the disputed goods would have resolved the issue at the point of initiation.’
The Complainant referred to the Respondent telling her that the ‘theft’ issue was being ‘marked up’ on her Personnel file. The Complainant took a negative view of this reference.
All evidence pointed to normal interactions between the Respondent and the Complaint in regard to hours of work, holidays etc. Pay sheets, holiday records were all produced in evidence.
Taking all of the above into account, the Adjudicator did not find any major evidence of a “fundamental breach of contract” to justify a resignation and accordingly the claim for Constructive dismissal failed.
In determination of its decision, the Adjudication Officer, referred to the fact that the Respondent offered to have the matters considered by the Mediation Services of the WRC which was not followed up on by the Complainant. The Respondent also requested the Complaint reconsider her resignation and avail of the internal Grievance procedure which again was also not followed up on.
Unlike an unfair dismissal claim, the burden of proof in a constructive dismissal claim rests with the Claimant to demonstrate he / she was left with no option but to resign. This is a high bar to successfully achieve. There is no doubt that Claimant in this instance lost faith and confidence in her employer, However, the failure by the Claimant to seek to have her concerns addressed in line with the internal Grievance process / procedures prior to her resignation and failure to demonstrate a fundamental breach of her contract of employment by the Respondent resulted in her claim being unsuccessful.
Decision Not Upheld
Constructive Dismissal Claim Unsuccessful
Series of Disputes Arising did not Equate to Constructive Dismissal
Case Number ADJ-00002558
The Complainant was employed by a charitable organisation from June 2014 to December 2015 when she tendered her resignation by letter on December 1st 2015. The Complainant alleged constructive dismissal due to the actions of the Respondent. She was employed as a Marketing and Fundraising Manager.
The Complainant alleged that because of a series of incidents she had to resign her post. She referred to a number of reasons including that she had a verbal agreement to be paid for sick pay and this was reneged on, that she was questioned about events relating to an event and was blamed for it not going ahead, that she was denied Force Majeure to attend hospital when her Grandmother was taken suddenly ill as she was next of kin, that she was subjected to questioning by her boss on one day, that he came in specifically to admonish her.
The Respondent stated that In December 2015 that as a result of a phone call from her boss that made her feel very uncomfortable that she attended her doctor and the doctor treated her for anxiety and told her that the place of work was not suitable for her. The Complainant was pregnant at the time. She alleged that when she told her employer that she was pregnant after 9 weeks that their attitude seemed to change to her and they started to pick and choose which emails they replied to from her.
The Respondent denied that it contributed to the Complainants termination. The Complainant was not entitled to sick pay under her contract and there was no verbal agreement to pay her sick pay. The Respondent had paid the Complainant on occasion for sick leave as a gesture of goodwill but it was always at the discretion of Management. The Complainant was not harassed but as the employer the Respondent had the right to query her actions and performance. With regard to the Fashion show that was cancelled the Complainant decided to go against the advice of using a committee structure. The event had to be cancelled; a first for the Charity and it caused reputational damage.
With regard to the Force Majeure day the Complainant informed the Organisation that she was taking the day as a Force Majeure day and did not seek consent or approval.
With regard to coming into the office to admonish her, the Manager stated he would visit the office once or twice a week normally for fifteen to twenty minutes each week. The conversation related to the performance of her duties which he as, as her employer, was entitled to do.
The Complainant was offered the services of Mediation to mediate in her resignation. She refused to participate in this. The Complainant did not invoke the internal grievance procedure and was written to after she resigned to ask her to reconsider her resignation. The Complainant rejected this offer. The Respondent wrote to the Complainant again that day stating that if she had a “change of heart” regarding her resignation to call the Respondent.
The Adjudicator Officer found the Complainant’s claim for constructive dismissal not well founded. In determination of its decision, the Adjudication Officer referred to the fact that the Complainant, despite stating she had a series of grievances in bringing up matters with the Respondent, did not invoke the formal grievance process. The Adjudicator found that it was not reasonable for the Complainant to terminate her contract of employment in circumstances were she failed to invoke any grievance in relation to her concerns. Furthermore, the Adjudicator found that the Respondent acted reasonably in their dealings with the Claimant and was fair and objective at all times.
The Complainants case for constructive dismissal was built on a claim for sick pay which she was not contractually entitled to, a dispute over a Fashion Show which does not seem to have been well organized, a dispute about Force Majeure which the Complainant was in breach of the Parental Leave Act 1998, a telephone conversation which she states seriously affected her and she could not remember how it ended but yet could recall and document the conversation in minute detail that evening and a medical certificate which recounts only her statement that she was stressed at work.
As a result of all of the above analysis, I deem the Complainant’s claim for constructive unfair dismissal, pursuant to the Unfair Dismissal Acts, 1977 to 2007, is not well founded.
Similar to the previous case outlined, it is critical in any constructive dismissal case that the Claimant inform the Employer fully of the complaint being made and that the Employer be given an opportunity to resolve the concerns.
The burden for the Claimant is an extremely high one. A Claimant must show that there has been a significant breach going to the root of the contract, which would prevent the Claimant from carrying out his contractual duties. In this instance, the Claimant had no legal contractual entitlement to be paid sick pay. The Adjudicator could not see how a legitimate visit by the Employer to their own office could be construed by the Complainant as being targeted.
Constructive Dismissal Claim Unsuccessful
Complainant Failed to Follow Internal Grievance Procedure
Case Number ADJ-00004306
The Claimant submitted that her employer did not provide her with a statement fully setting out her terms and conditions of employment which were subsequently unilaterally changed by her employer in relation to working hours which were substantially reduced.
Furthermore, the Claimant submitted she was wrongly accused of theft. Her position became completely untenable and she was left with no option but to resign from her employment with the organisation. The Claimant submitted she was subsequently penalised as a result of bringing a separate defamation claim. In light of the above the Claimant submitted she could have no confidence whatever that her employer would deal with her fairly or in accordance with her contract of employment should she engage in the grievance procedure.
In response, the Employer submitted that the as soon as the error in regard to not issuing a contract of employment came to light, it was rectified very quickly thereafter. Evidence was given in relation to working hours and weekly changes / flexibilities. The Employer submitted there was nothing out of the ordinary in regard to the subsequent changes.
The Employer denied the allegations of unreasonable behaviour claiming the Complaint resigned voluntarily on the 27th May 2015. This was supported by considerable written and oral evidence.
In determination of its decision, the Adjudication Officer referenced that a simple matter concerning the alleged theft had got ‘completely out of hand and a lot of misunderstandings had been allowed to develop. A simple production of a receipt from the supplier showing that the Complainant had paid for the disputed goods would have resolved the issue at the point of initiation.’
The Complainant referred to the Respondent telling her that the ‘theft’ issue was being ‘marked up’ on her Personnel file. The Complainant took a negative view of this reference.
All evidence pointed to normal interactions between the Respondent and the Complaint in regard to hours of work, holidays etc. Pay sheets, holiday records were all produced in evidence.
Taking all of the above into account, the Adjudicator did not find any major evidence of a “fundamental breach of contract” to justify a resignation and accordingly the claim for Constructive dismissal failed.
In determination of its decision, the Adjudication Officer, referred to the fact that the Respondent offered to have the matters considered by the Mediation Services of the WRC which was not followed up on by the Complainant. The Respondent also requested the Complaint reconsider her resignation and avail of the internal Grievance procedure which again was also not followed up on.
Unlike an unfair dismissal claim, the burden of proof in a constructive dismissal claim rests with the Claimant to demonstrate he / she was left with no option but to resign. This is a high bar to successfully achieve. There is no doubt that Claimant in this instance lost faith and confidence in her employer, However, the failure by the Claimant to seek to have her concerns addressed in line with the internal Grievance process / procedures prior to her resignation and failure to demonstrate a fundamental breach of her contract of employment by the Respondent resulted in her claim being unsuccessful.
Decision Not Upheld
Constructive Dismissal Claim Unsuccessful
Series of Disputes Arising did not Equate to Constructive Dismissal
Case Number ADJ-00002558
The Complainant was employed by a charitable organisation from June 2014 to December 2015 when she tendered her resignation by letter on December 1st 2015. The Complainant alleged constructive dismissal due to the actions of the Respondent. She was employed as a Marketing and Fundraising Manager.
The Complainant alleged that because of a series of incidents she had to resign her post. She referred to a number of reasons including that she had a verbal agreement to be paid for sick pay and this was reneged on, that she was questioned about events relating to an event and was blamed for it not going ahead, that she was denied Force Majeure to attend hospital when her Grandmother was taken suddenly ill as she was next of kin, that she was subjected to questioning by her boss on one day, that he came in specifically to admonish her.
The Respondent stated that In December 2015 that as a result of a phone call from her boss that made her feel very uncomfortable that she attended her doctor and the doctor treated her for anxiety and told her that the place of work was not suitable for her. The Complainant was pregnant at the time. She alleged that when she told her employer that she was pregnant after 9 weeks that their attitude seemed to change to her and they started to pick and choose which emails they replied to from her.
The Respondent denied that it contributed to the Complainants termination. The Complainant was not entitled to sick pay under her contract and there was no verbal agreement to pay her sick pay. The Respondent had paid the Complainant on occasion for sick leave as a gesture of goodwill but it was always at the discretion of Management. The Complainant was not harassed but as the employer the Respondent had the right to query her actions and performance. With regard to the Fashion show that was cancelled the Complainant decided to go against the advice of using a committee structure. The event had to be cancelled; a first for the Charity and it caused reputational damage.
With regard to the Force Majeure day the Complainant informed the Organisation that she was taking the day as a Force Majeure day and did not seek consent or approval.
With regard to coming into the office to admonish her, the Manager stated he would visit the office once or twice a week normally for fifteen to twenty minutes each week. The conversation related to the performance of her duties which he as, as her employer, was entitled to do.
The Complainant was offered the services of Mediation to mediate in her resignation. She refused to participate in this. The Complainant did not invoke the internal grievance procedure and was written to after she resigned to ask her to reconsider her resignation. The Complainant rejected this offer. The Respondent wrote to the Complainant again that day stating that if she had a “change of heart” regarding her resignation to call the Respondent.
The Adjudicator Officer found the Complainant’s claim for constructive dismissal not well founded. In determination of its decision, the Adjudication Officer referred to the fact that the Complainant, despite stating she had a series of grievances in bringing up matters with the Respondent, did not invoke the formal grievance process. The Adjudicator found that it was not reasonable for the Complainant to terminate her contract of employment in circumstances were she failed to invoke any grievance in relation to her concerns. Furthermore, the Adjudicator found that the Respondent acted reasonably in their dealings with the Claimant and was fair and objective at all times.
The Complainants case for constructive dismissal was built on a claim for sick pay which she was not contractually entitled to, a dispute over a Fashion Show which does not seem to have been well organized, a dispute about Force Majeure which the Complainant was in breach of the Parental Leave Act 1998, a telephone conversation which she states seriously affected her and she could not remember how it ended but yet could recall and document the conversation in minute detail that evening and a medical certificate which recounts only her statement that she was stressed at work.
As a result of all of the above analysis, I deem the Complainant’s claim for constructive unfair dismissal, pursuant to the Unfair Dismissal Acts, 1977 to 2007, is not well founded.
Similar to the previous case outlined, it is critical in any constructive dismissal case that the Claimant inform the Employer fully of the complaint being made and that the Employer be given an opportunity to resolve the concerns.
The burden for the Claimant is an extremely high one. A Claimant must show that there has been a significant breach going to the root of the contract, which would prevent the Claimant from carrying out his contractual duties. In this instance, the Claimant had no legal contractual entitlement to be paid sick pay. The Adjudicator could not see how a legitimate visit by the Employer to their own office could be construed by the Complainant as being targeted.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
www.adarehrm.ie
- Advice on all Employment Law, Industrial Relations and HR queries or issues
- Review, Development and Implementation of Contracts of Employment and Employee Policies and Procedures
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment, Conducting Disciplinary Meetings
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
- Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development
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