EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Mykhailo Sorokhan UD632/2013
MN326/2013
against
Rathedmond Engineering Limited
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr A. Courell B.L.
Members: Mr D. Morrison
Ms R. Kerrigan
heard this claim at Sligo on 3rd September 2014
Representation:
Claimant : McGovern Walsh & Co, Solicitors, Pearse Plaza, Pearse Road, Sligo
Respondent : Mullaneys, Solicitors, Thomas Street, Sligo
The determination of the Tribunal was as follows:
Claimant’s Case
The claimant commenced employment with the respondent in 2002. He worked as a welder in this manufacturing enterprise. From the commencement of his employment up to its termination in late 2012, the claimant was not furnished with a grievance procedure. His main point of contact and overseer was the managing director. The claimant told the Tribunal that this manager was regularly critical of his work performance especially from 2011 onwards. In support of that contention he cited a number of incidents where he was treated unfavourably compared to other employees. This manager claimed he was not working properly and timed his work rate. This treatment was done in a hostile and aggressive manner. This witness said he was fearful of airing his grievances to the respondent
As a result of pressure and conditions at work the claimant fainted and collapsed at his workplace in early 2012. He subsequently forwarded medical certificates to his employer stating he was unable to attend work due to stress and anxiety. The claimant then instructed his solicitor to write to the respondent. In a letter dated 7 January 2013 his legal representative stated that the claimant had been constructively dismissed from his employment due to the treatment he had received “for quite some time”. By January 2013, the claimant sought work elsewhere.
Respondent’s Case
The respondent was administered and managed by two members of the same family who both gave evidence to the Tribunal. A third member also worked on the premises. The managing director who described the claimant as a good employee stated that the incidents as relayed by the claimant did not happen. There was no reason for the claimant to be fearful of him as an employer. He never bullied or timed the claimant’s work rate nor had he a problem with his work performance. The witness added towards the end of the claimant’s tenure with the company that he became dissatisfied at work and sought redundancy. In January 2013 he dealt with a query from another business enquiring on the claimant’s character.
A son of the managing director accepted that the claimant had not been issued with written terms and conditions of his employment nor had he been furnished with a grievance procedure.
At times some staff approached him on work issues but this never included the claimant. The claimant never made his alleged grievances known to him or the wider respondent. When the company received the news that the claimant was resigning the witness attempted to resolve the situation but to no avail as the claimant did not engage with the company.
A brother of the managing director who also worked on the factory floor as a welder said that the claimant never approached him on work issues. This witness seldom directed staff but noted that at times the managing director did point out mistakes to him and others about their work.
Determination
It is a serious omission on behalf of an employer not to issue written terms and conditions of employment to its employees. This document outlines the working relationship between staff and their employer. The respondent’s case is weakened by this omission. However in this case it is not a fatal flaw as the claimant failed to notify or bring to the attention his complaints and grievances to the respondent prior to resigning his employment. The claimant did not give the company an opportunity to address his concerns and subsequently declined an invitation to discuss them.
The Tribunal by a unanimous decision find that the claimant did not sufficiently demonstrate that his only reasonable option in this case was to terminate his own employment. Accordingly, the claim under the Unfair Dismissals Acts, 1997 to 2007 fails.
The appeal under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 cannot succeed as this was a constructive dismissal case.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)