UDD1621

Mr Raymond Barry (the Complainant) complained to the Court that his resignation from his employment on 8 April 2015 amounted to a constructive dismissal within the meaning of the Unfair Dismissals Acts 1997 – 2015 (the Act) by his employer G4S Security Solutions Ireland (the Respondent). The Respondent denies the that it dismissed the Complainant, substantively or otherwise and submits that the Complainant voluntarily resigned from the Company.

The Law

Section 1 of the Act defines constructive dismissal in the following manner

• the termination by the employee of his 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, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer

• 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

It is common case that the Complainant began his career as a security officer with another firm Chubb Ireland Ltd which was taken over by G4S in July 2009. While employed by Chubb Ireland Ltd the Complainant worked 42 hours per week.

Following the transfer of undertakings to the Respondent his hours reduced from 42 to 25 per week. Correspondence was supplied to the Court that disclosed that the reduction in hours was effected at the Complainant’s request. The Complainant told the Court that he did not prepare those letters but rather was presented with them for signing by his supervisor and that he felt he had no option but to sign them as he had been working seven day shifts for two years and was exhausted.

He said that signing the letter was the only way he could secure a day off. He signed on the advice of his family.

As this matter took place in and around April 2011 the Court did not find it necessary to make any findings regarding the detail of this matter.

His hours were subsequently further reduced to 19 hours per week.

He was around this time reassigned from static guard duties on industrial sites to a retail environment. This involved significant contact with customers and the general public. He says he was not provided with any related training. This development occurred some three years before his employment terminated in 2015.

On 22 December 2014 the Complainant fell ill and took time off work. He submitted medical certificates that mentioned stress but did not particularise it to workplace stress.

The Complainant was under pressure financially as his hours had been reduced to a level below that which was sufficient to enable him to meet his day to day living expenses. Signing on for Social Welfare Benefits was the only way he could finance himself. To do this he needed his P45. He was told by a friend of his that he could have difficulties getting his P45 from the Company if he became difficult with them. Accordingly he decided to submit his letter of resignation, secure his P45 and sign on for Social Welfare Benefits.

The Respondent supplied the P45 efficiently after it received the Complainant’s resignation.

The Complainant has, since he resigned, secured full time employment with another security company. The Respondent told the Court that it did not terminate his employment and that it had work available for him should he wish to resume working.

Discussion

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. The first arises where the Complainant would, because of the conduct of the employer, be “entitled” to resign his position. The second arises where it would be “reasonable” for him to do so without giving prior notice of the termination to the employer.

In this case the Complainant resigned his position by letter dated 8 April 2015. He resigned with immediate effect and cited his health as the reason for that resignation. Finally he asked for his P45 and thanked the Company for the time he had spent in its employ.

On the face of it this letter discloses no evidence of bad behaviour by the Respondent. Instead it conveys the Complainant’s satisfaction with his period of service with the Company.

The Complainant now submits however that this was the only means by which he could be certain that he would receive his P45 in an efficient manner. He cites a conversation he had with an unidentified person who told him that he had had difficulties getting his P45 from the Respondent and that it, the Respondent, could delay providing it if he did not adopt this course of action.

The Court finds that this was a concern the Complainant had. Such a concern of the Complainant however cannot be converted into the “conduct of .the employer”, within the meaning of the Act, and used to ground a complaint of constructive dismissal, unless there is evidence of behaviour of that type on its part disclosed to the Court. No such behaviour was disclosed in the course of the hearing. The person who gave the Complainant the advice was not identified to the Court nor did he attend the hearing to given evidence of circumstances that arose in his case. Equally the Complainant did not seek his P45 other than by correspondence of the 8 April 2015. It was immediately provided to him.

The Respondent told the Court that it was badly affected by the recession, was losing contracts and was adjusting hours of work accordingly. It denied that it withheld p45’s from staff and told the Court that it would have provided it to the Complainant whether he resigned claiming constructive dismissal or otherwise.

The Complainant told the Court that he did not submit a formal grievance regarding the reduction in his hours to the Company.

On the basis of this evidence the Court finds that the behaviour of the employer was reasonable in the circumstances and was not such as would justify the Complainant terminating his employment by way of constructive dismissal. The Court finds that there may have been grounds upon which the Complainant could claim a redundancy situation had developed. However no evidence of behaviour by the employer such as would justify a finding of constructive dismissal was before the Court.

Determination

The Court determines that the Complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
JD______________________
23 August 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.