ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000091

Complaint for Resolution:

Date of Adjudication Hearing: 20/01/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, 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.

Complainant’s Submission and Presentation:

The complainant’s case was that he was constructively dismissed by virtue of a number of incidents which are as follows.

The complainant was employed as a cleaner by a contract cleaning company. In addition to his general work on a number of the administrative floors in the client building he was assigned to the cafeteria area which involved what he regarded as excessively heavy work clearing away bags of glass bottles.

In addition he perceived a Health and Safety hazard as the bottles could occasionally be broken.

Eventually he refused to carry out these duties on them basis that they were unsafe and that he was not physically fit for them.

The second incident related to the refusal of his employer to grant him the annual leave he sought for the Christmas 2015 period.

There was a third issue which concerned the respondent making certain demands off him in respect of his dress code, and his wearing of make up.

He confirmed that did not make any formal complaint about these issues through the company grievance machinery.

Respondent’s Submission and Presentation:

The respondent submitted in response that it carried out a risk assessment following the hazard of the heavy bags and possible broken glass being brought to its attention and advised employees not to overfill the bags beyond their physical capacity to carry them. It also made available protective equipment.

Regarding the annual leave issue it said that in general it reserved the right to determine when employees could take annual leave and that it could not accommodate the complainant with the dates he sought over the Christmas 2015 period.

A member of the management team had arranged to meet the complainant to explain the situation and that one of the complainant’s co-workers had already had annual leave approved for the period he sought.

It had not ‘cancelled’ his leave as he claimed in his claim form but had declined to approve it.

In the course of this discussion the respondent says the complainant grabbed his jacket and walked out of his place of work with two hours of his shift remaining.

The company said that it regarded the complainant as a very good worker and would be happy to have him back. It also said that it offered to accommodate him with work on a different site

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. and under Section 8 of the Unfair Dismissals Act, 1977

Issues for Decision:

The question to be determined in a case of constructive dismissal arising under the Unfair Dismissals Act is whether the employer’s behaviour is such that the employee’s position becomes untenable and there arises a de facto breach of the employee’s contract of employment by the employer.

Put another way it is whether the employer’s actions are tantamount to a dismissal.

On the other side the test is whether it would be reasonable, in the light of such behaviour for the employee to break the contract or that he would have been entitled to do so because of the unreasonableness of the employer’s conduct.

Decision:

I find that no aspect of the respondent’s actions or conduct in this case go anywhere close to meeting the type of unreasonable behaviour required to justify a case of constructive dismissal.

It behaved reasonably in relation to the heavy bags issue, addressing it promptly and sensibly. This removed any case of complaint or grievance held by the complainant.

The complainant’s reaction to being denied the specific annual leave he sought was entirely without justification. It is a matter for the employer, in consultation with the employee to determine annual leave arrangements. The complainant aborted the meeting at which the matter was to be explained to him.

Finally I note that he made no attempt to raise these matters directly with his employer before terminating his contract and his failure to do so robs his complaint of any remaining validity.

Accordingly his claim fails and I dismiss it.

Dated:   8 April 2016