Case Number: ADJ-00005246. Workplace Relations Commission

Docket NumberADJ-00005246
Date03 April 2018
CourtWorkplace Relations Commission
PartiesAn Executive Chairman V A Charity
RespondentA Charity
ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005246

Parties:

Complainant

Respondent

Anonymised Parties

An Executive Chairman

A Charity

Representatives

Ms Deirdre O Callaghan, B.L. instructed by Rachel O'Toole Solicitors

Mr Stephen O Donoghue, B.L. instructed Flynn Exams Solicitors

Complaint:

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00007218-001

27/09/2016

Date of Adjudication Hearing: 27 June ,14, 15 September and 27,28 November 2017.

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with 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 complaints 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 in this case worked continuously from April 1,1992 to 27 November, 2015.He worked as CEO up until March 2015 when he assumed the role of Executive Chairman. The Complainant is claiming Constructive Dismissal. The Respondent is a Charity and had rejected the the claim.

On the first day of hearing a question arose on time limits. The Claim was received by the WRC on 27 September 2016. I will address this as a Preliminary issue.

Summary of Complainant’s Case:

Preliminary Argument:

Counsel for the Complainant outlined the background to the Complainants application for Constructive Dismissal. The Claim was received by the WRC at 16.25 hrs on 27 September 2016 and referred to circumstances of the complainant’s involuntary termination of employment dated 27 November 2015.

Counsel for the complainant submitted that the Solicitor in the case had received instructions to advance a claim for constructive dismissal on 22 October, 2015.An online application was filed on 29 January 2016 with a supporting letter completed by dictation. On March 2, 2016, The WRC wrote to the Solicitors office indicating that an application had not been received. This communication was then mislaid at the office only to be retrieved through file review on September 26,2016. The Complainants subsequently made an application for an extension of the statutory time limits on reasonable cause.

Counsel made an extensive argument in support of granting the extension of time as the error was not of the complainants own making and he should not lose out on his requested hearing .She submitted that the erroneous misfiling was a justifiable excuse and it was a once off occurrence set against the backdrop of the Solicitors genuine believe that the application had been sent .She argued that she had demonstrated an arguable case and that she did not have to demonstrate that it was a winning case .

Extensive Case Law was opened to the hearing.

ADJ -00003010 Where Reasonable cause was granted following the submission of medical reports.

DWT 0425 Cementation Skanska v A Worker where Reasonable cause was granted based on the worker’s belief that the Employer would honour a Labour Court Recommendation.

ADJ -00005326 where reasonable cause was granted following submissions raised on Labour Court precedent.

Substantive Case:

Counsel for the complainant submitted that the complainant had been constructively dismissed. His experience at work was unbearable and he had no alternative but to leave. Despite his Founder member status, the complainant did not secure clarity on his role post CEO. He understood that he was to chair both Board and Management meetings and cracks developed in how his role was to dovetail with the new CEO. Difference in interpretation which arose led to him being undermined.

He had been requested to remain on by The Board in April 2015 and while the Management Consultant became involved, there was no note on the resolution reached between the complainant and the incumbent CEO.

At the end of the day, the Respondent had a duty towards the complainant as an employee to provide a safe system of work. The Board was obliged under law to uphold this. She submitted that the Deputy CEO had confirmed that the Board had not done enough to address the tensions between the parties. There was no vigilance during the transitionary period. The contract was not completed. The Complainant did raise a Grievance in 2015

Counsel dismissed the reference to the complainants controlling practices as a smokescreen. The Complainant was 69 years old at the time of his termination of employment, which did not place him in a favourable rehiring mode.

Complainants Evidence:

The Complainant commenced as a Volunteer in 1986. The service was incorporated as a company in 1989.He became an employee in 1992 and worked tirelessly as CEO over a sometime 50-60-hour week to build what had started as a Senior Citizens forum to the extensive facility it is today. There were 85 employees and 100 volunteers. He was paid €101,000 in his role as CEO.

From 2013, he began to formulate a plan with the Board of the Respondent to step back from his full-time role as CEO to a part time position. In 2014 an Advisory Board was set up to address the succession plan. The Respondent set about the task of recruiting a replacement CEO.

There were 26 applications for the role of CEO and the successful candidate, Ms A commenced in March, 2015 and, worked with him over a four-day period before the complainant had a 5-week absence due to illness. Ms A had worked there previously and he was pleased with her appointment. He returned during the first week of April and assumed the role of Executive Chairman on a 20 hr week basis in return for €800...

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