EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Paul Gallagher UD806/2013
against
MCR Security
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Ms M. Sweeney
Ms H. Murphy
heard this claim at Limerick on 13th November 2014
Representation:
Claimant: The claimant in person
Respondent: Warren Parkes. Solicitor, The Capel Buildings, Mary’s Abbey, Dublin 7
Claimant’s case:
It was the claimant’s position that he was constructively dismissed by the respondent and the fact of dismissal was disputed by the respondent. Therefore the claimant entered into evidence first.
The respondent is a security/maintenance service provider to a number of businesses and construction sites throughout the country and the claimant was employed by them as a security guard from 1st July 2008 until the termination of his employment on 16th May 2013.
The claimant was based on a site in County Limerick from September 2011 until May 2012 having worked on other sites around Tipperary and Limerick beforehand. There were incidents of stone throwing by youths on the claimant’s site over a weekend in May 2012 in which the claimant’s car was damaged. The claimant took it upon himself to pay a visit to the home of a former employee of the respondent whom he thought may have had something to do with the stone throwing. This led to the claimant being disciplined by the respondent insofar as he was eventually issued with a written warning.
At the outset of the investigatory/disciplinary process the claimant took time off while the investigation progressed. However this was at his own request and the respondent offered him a transfer to another site a short distance away from the site he was on at the time. This move would have entailed a change of role from security guard to maintenance/janitor. The claimant was initially told that this would involve a reduction in his hourly rate of pay but was subsequently told that it would be on the same terms and conditions as he was previously on. The reason given to the claimant for the transfer was that it was for his own safety. The claimant declined this offer of transfer and was then told that the only security guard position available at that time was in Cork City. However the claimant did not want to travel to Cork for work and remained out of work until 1st October 2012. During the intervening time the disciplinary issue had been dealt with and the claimant had received a written warning.
The claimant continued to work on the Cork City site from 1st October 2012 until he terminated his employment on 16th May 2013. Travelling time from his home to Cork City was about 1 hour and 40 minutes and this was about 40 minutes longer than he had ever travelled to work before. The total milage travelled per week was about 700 miles and the claimant told the Tribunal that taking the cost of this into account he was left with about €210.00 per week.
Shortly before he left his employment the claimant believed that positions were currently or had been available on other sites, serviced by the respondent, nearer to Limerick and the claimant was disgusted that he had not been offered any of these positions. The claimant did not enquire with the respondent about these positions as he believed that the respondent already knew of his interest in such positions and felt that he would be “wasting his breath”. The claimant left his employment on 16th May 2013 without giving notice or a reason for his leaving to the respondent.
It was the claimant’s contention that he had no option but to leave and that he was therefore constructively dismissed.
Respondent’s case:
The issue in relation to the incident on the Limerick site in May 2012 and the claimant’s subsequent transfer to a site in Cork City had been dealt with by the respondent and resolved whereby the claimant resumed work as a security guard in Cork City on 1st October 2012. The claimant then worked without incident and never raised a grievance before he resigned without notice or reason on 16th May 2013.
It was the respondent’s position that no grievance was raised and therefore no opportunity given to them to address such a grievance. The claimant simply left of his own volition and was not dismissed.
Determination:
Dismissal in relation to an employee is defined in Section 1 (b) of the Unfair Dismissals Acts as the termination by the employee of his/her contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, to terminate the contract of employment without giving prior notice of the termination to the employer was or where it would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer.
In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of his/her employment other than to terminate his/her employment. In effect the relevant section reverses the burden of proof for an employer set out in Section 6 (1) of the Act.
In all the circumstances of the case the Tribunal is unanimously of the view that the claimant failed to meet the criteria set out in Section 1 (b) of the Act.
Accordingly the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)