Case Number: ADJ-00012455. Workplace Relations Commission

• Date: 13 February 2019
• Docket Number: ADJ-00012455
• Court: Workplace Relations Commission
• Parties: A Complainant V A Sports Centre

Procedure:

In accordance with Section 41 of the Workplace Relations Act and Section 8 of the Unfair Dismissals Acts,following the referral of the complaint to me by the Director General, I inquired into the complaint 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 was employed by the respondent from 18 June 2012 until 22 December 2017 when he alleges that he was subjected to a constructive unfair dismissal.

Summary of Complainant’s Case:

The complainant commenced employment as a grounds maintenance operative with the respondent company on 18 June 2012and was subsequently promoted to grounds maintenance supervisor. The complainant submitted that he took steps to ensure that he was treated fairly by his manager during the last two years of his employment. He raised grievances, the outcome of which was never in his favour. The relationship between the complainant and his manager only deteriorated. The complainant states that he sought the assistance of the WRC by way of mediation and an agreement was drawn up and was signed by the complainant and his manager in July 2017. The complainant contends that in August 2017, the alleged behaviour of his manager going directly to his colleagues happened again. The complainant submits that workplans were agreed on 14 August 2017 at a team meeting. The complainant states that he had a printed copy of the workplan and a specific task namely shock waving was not scheduled on same. The complainant having concerns about same e-mailed his manager after both of his colleagues had told him they were scheduled to carry out this work from Thursday to Saturday. The complainant maintains that, as supervisor, he should have been informed of the change to the work schedule. The complainant submits that as he was concerned that the old ways were slipping back, he e-mailed his manager on 22 August 2017 and asked why he was not informed of the changes to the workplan. The complainant states that on 23 August, he and his manager had a one-to-one meeting with the agreed note taker. The complainant submits that he did not discuss the changes at this meeting due to the confidentiality of the WRC agreement. On 24 August, the manager called a meeting of the full grounds team. The complainant maintains that staff were not aware why this meeting had been called. The complainant was taken aback when his e-mail was the subject of the meeting. The complainant had requested that the matter be discussed privately between the manager and himself only. The complainant submits that he felt that the spirit of the WRC agreement was being ignored and he went to HR seeking advice. He states that after seeking advice from HR, a full-blown investigation under the dignity at work policy commenced and the outcome of same was that the complainant faced disciplinary charges and was dismissed from employment on 13 October 2017. The complainant appealed his dismissal and this was overturned on 13 December 2017. The appeal outcome was a Final Written Warning and redeployment to another department to the position of cleaner. The complainant states that his pay rate reduced by €2.08 per hour and his supervisor status was gone. The terms of his employment changed from five days per week Monday to Friday to five over seven. The complainant submits that this was unacceptable to him and he resigned his position on 22 December 2017. The complainant submits that he felt this was the last straw given that he had sought HR guidance. He had a WRC signed agreement and he found no support when he identified times when he truly believed his manager was undermining his role as supervisor. The complainant states that following the employer investigation under the dignity at work policy the outcome was that the complainant’s claim was vexatious. The complainant alleges that his manager countered this with his own complaint against the complainant in September 2017 stating he could no longer manage the complainant. This was never covered with the complainant and he states that all his reviews were satisfactory. While the manager alleged he had warned the complainant not to smoke on campus, he states this was not the case; he had asked the complainant not to smoke while using the strimmer and the complainant ceased smoking while using the strimmer. The complainant also submits that the manager used cctv evidence of the claimant leaving the site without permission and the period he reviewed the footage dated from August to September 2017. However, the company policy on cctv states that it should only be used if the allegation is in dispute. The complainant states that he admitted to the charges stating that he had established a custom and practice and this was the first time he had been challenged on leaving the premises, others leave without permission and have never been sanctioned or subject to investigation. The complainant states that covert recording of meetings was done to protect himself as what was agreed to at meetings differed from time to time. The complainant asserts that this further demonstrates the lack of trust he had in his working relationship and why he sought to have the matter addressed through the grievance process and WRC mediation process. The complainant’s union representative submits the following in support of the complainant’s claim of constructive unfair dismissal; (a) changing an employee’s duties or normal working place – the complainant was moved to a totally different department to the role of cleaner (b) reducing an employee’s pay/salary – the complainant’s pay was reduced by €2. 08 per hour (c) undermining/changing an employee’s authority and/or status – his supervisor status was removed (d) changing any of the employee’s terms and conditions without obtaining the employee’s prior agreement to such changes – the working week would be five over seven going forward, the complainant was not given a choice on the changes made to his existing contract (e) unfair use of the disciplinary procedure- the complainant used the resolution processes to address his concerns but when he sought help from HR, he found himself dismissed (f) actions which lead to a breakdown in the mutual trust and confidence between the employer and employee which is implicit in the contract between the parties such as not taking an employee’s grievance seriously – the complainant did everything in his power to preserve his position

Summary of Respondent’s Case:

The respondent states that the complainant was employed as a grounds maintenance supervisor. It states that the complainant was initially employed on 18 June 2012 on a fixed term contract and on 15 February 2013 he was employed on a full-time permanent contract as a grounds maintenance operative. The respondent submits that in July 2013, the complainant was promoted to grounds maintenance supervisor. The respondent states that the complainant reported to Mr. R, head of maintenance for the respondent. The respondent states that Mr R is a brother in law of the complainant. The respondent states that from the commencement of his employment until April 2016, the complainant’s employment with the respondent was without incident. The respondent submits that in April 2016 during a meeting with Mr R, the complainant requested a pay review. The respondent contends that notwithstanding the fact that the respondent does not normally conduct ad hoc pay reviews, the respondent conducted a formal benchmarking exercise through HR advisors to determine if the complainant’s salary was in keeping with other similar industries. The outcome of the benchmarking exercise was that the complainant’s salary was in keeping with industry norms. The respondent states that the complainant was dissatisfied with the outcome of the benchmarking exercise and submitted a grievance in accordance with the respondent’s Grievance Policy in relation to same. The respondent submits that the grievance not only related to the complainant’s pay review but also concerned other issues between the complainant and Mr. R. The respondent states that the complainant’s grievance was fully investigated by Mr. G, Sports Operations Manager with the respondent. The respondent asserts that the complainant’s grievance was not upheld. The respondent states that in his report, Mr. G noted that the relationship between the complainant and Mr. R was “strained and requires immediate attention and work from both parties in order for the pair to repair their professional and personal relationships”. The respondent submits that the complainant appealed Mr. G’s decision and the appeal was heard by Mr. M, Chief Operating Officer of the respondent on 10 October 2016. The complainant’s appeal was not upheld....