FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DARGLE CABS - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Alleged constructive dismissal.
BACKGROUND:
2. The worker commenced his employment with Ardee Cabs on the 1st of August, 1997, as part of a FAS programme. He was working as a controller on a 4 shift cycle, each shift being of approximately 10 hours duration. At that stage there were 4 controllers. On the 15th of December, 1997, Dargle Cabs took over the business. The worker claims that shortly afterwards he began to experience problems in the job. He claims that the shifts began to change without any consultation, and that not enough prior notice was given to the workers regarding the shifts. When the worker protested about this he was given a verbal warning.
The worker referred his case to a Rights Commissioner and claims that, following the hearing, things became very unpleasant in work. At the beginning of April, 1998, the worker was told that he would have to work 2 days and 2 nights per week. He claims that his original (verbal) agreement was for 1 day and 3 nights. At this stage he felt he could no longer work for the Company and wrote a letter of resignation.
The Company's view is that when it took over the business in December, 1977, the worker was complaining that another controller had virtual monopoly on the night time shifts. An agreement was drawn up in January, 1998, giving equal rotation of shifts, and included a paragraph stating this which the worker insisted on being included. Subsequently, the Company claims, the worker's behaviour deteriorated and he was given a written warning on the 27th of April.
The worker referred his case to the Labour Court on the 28th of May, 1998, in accordance with Section 20(1) , of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 2nd of September, 1998. The worker agreed to be bound by the Court's recommendation.
WORKER'S ARGUMENTS:
3. 1. The worker's contract called for a 3 night shifts and a shift either Saturday or Sunday. He always knew in advance what shifts he was to work. This was very important as his wife was seriously ill and he needed to know when he was not available and find someone to look after her.
2. The situation deteriorated when Dargle Cabs took over the business. The shifts were changed without consultation which caused numerous problems for the worker. Overtime was rarely paid and there were no breaks during shifts.
3. The worker started a small business as a contractor but it did not interfere with his work at the Company. He was not late for work or rude to customers at the Company claims. He was given no written contract of employment when he was appointed.
COMPANY'S ARGUMENTS:
4. 1. The shifts had always been fairly equally divided between the controllers. The Agreement of January, 1998, was drawn up to provide absolute rotation. The worker insisted on such a paragraph being included. When the worker set up as a contractor in March, 1998, he asked to be rostered differently to the other controllers, and specifically asked to be put on night shifts only. This was in direct contrast to what he had earlier insisted on and was unfair to the other controllers.
2. The worker became unreliable in relation to his work. He received a written warning on the 27th of April, which included refusing to work shifts, using bad language and complaints from customers. On the 29th of April, the worker wrote a letter of resignation and withdrew all complaints regarding the Company.
RECOMMENDATION:
The Court's notes that the claimant resigned from his employment with the Company. He claims that the circumstance leading to his resignation were such as to constitute a constructive dismissal. It is, therefore, for the claimant to show to the Court's satisfaction that the conduct or action of the employer was such as to leave him with no other reasonable alternative but to resign.
The Court is not satisfied that the claimant had discharged that onus, and finds that the claimant was not constructively dismissed.
The Court so recommends.
Signed on behalf of the Labour Court
Kevin Duffy
11th September, 1998______________________
C. O'N/U.S.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.