Complainant

Respondent

Anonymised Parties

Mechanic

Motor Trade Wholesaler

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00007175-001

24/09/2016

The complainant was employed as a mechanic since 2006 in a business which was acquired by the respondent in 2011. There were ongoing issues between the complainant and the respondent. In June 2014 the complainant went out on sick leave and some months later engaged the services of a mediator to deal with the employment issues. There was no agreed resolution and the complainant resigned in September 2016.  

The complainant’s employment transferred to the respondent in 2011. The complainant was not given a contract or job description and did not receive payslips. These failures caused difficulties as regards Social Welfare entitlements.

The complainant was employed as a mechanic but was frequently requested to work as a sales person. This caused delays in dealing with mechanical issues for which the complainant was criticised. If there were till or stock shortages the complainant was blamed for same.

The complainant was often informed by the owner that he might not get paid due to cash-flow issues.   The complainant’s wages were reduced by €50.00 per week without his agreement.

These matters caused the complainant severe stress and resulted in his doctor certifying him as unfit for work in June 2014. The complainant was referred to a psychiatrist who advised that he was suffering from work related stress and that he was the victim of bullying.

The complainant engaged a HR Specialist to mediate with his employer who contacted the owner on his behalf. The owner continued to seek details of the complainant’s illness and forwarded a copy of the company’s Bullying Prevention and Personal Harassment Policy, a document that the complainant had never seen before. There was no engagement with the complainant’s representative.

Given all of the above the complainant was compelled to resign from the respondent in September 2016.

The complainant went on sick leave in June 2014 and was certified as suffering from stress.

On 7 August 2014 the respondent invited the complainant to welfare meeting and advised that they would also hope to discuss any issues giving rise to his situation. The complainant declined the invitation.

On 30 September 2014 the respondent was contacted by a person purporting to represent the complainant requesting that the respondent cease contacting the complainant as this was causing further stress. Reference was made to ongoing bullying.

The respondent was shocked by this occurrence and wrote again to the complainant inviting him to a welfare meeting and advising him that it was not intended to engage in mediation as the complainant had not put any of his concerns to the respondent and that the proposed meeting would provide the opportunity to do so.

The complainant’s representative wrote objecting to the correspondence and requesting that the respondent meet with the representative. The respondent agreed to this meeting.

On 21 November 2014 the respondent wrote to the complainant setting out what had been discussed at the meeting with his representative. This letter noted that the representative had not given details of the alleged bullying and had suggested hat the complainant’s redundancy might provide a solution. The respondent stated that the complainant’s position was not redundant and that he should avail of the company’s Bullying and Harassment Procedures a copy of which was enclosed. Any complaints would be investigated by an independent third party.

In February 2015 the complainant’s representative wrote again to the respondent but made no attempt to engage with the process in any meaningful way.

Over a year and a half later the respondent received a letter from the complainant giving notice of his intention to resign. No reasons for this decision were offered in this correspondence.

The complainant has failed to exhaust the respondent’s internal procedures. The respondent was never given specific details of the alleged bullying and therefore could not investigate them. The complainant refused to attend welfare meetings.   The complainant resigned some three years after the events in question. The complainant’s claim of constructive dismissal must therefore fail.

The Unfair Dismissals Act, 1977, includes amongst the definitions of “dismissal” the following:

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…

The complainant is claiming constructive dismissal. This puts the onus of proof on the complainant to demonstrate that the actions of the employer were such as to leave the complainant with no reasonable option but to resign.

Section 6(7) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –

(a)    To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

It is accepted that the respondent had not issued payslips to the complainant when the latter raised the issue in 2013. This, apart from being a breach of the law, undoubtedly caused difficulties for the complainant who was applying for Social Welfare entitlements at the time and should not have had the added burden of chasing this matter up with the respondent. It would also appear that even after that the issuing of payslips was sporadic and still required the complainant to specifically request something that he had a legal right to receive automatically.

The issue of a wage reduction that was implemented by the respondent in March 2013 was raised.   The complainant stated that there was no agreement on his part in this regard. The respondent’s position was that he had discussed this with the staff and had postponed implementation of the pay cut for a long as possible.   The respondent accepted that there was no written agreement with staff members in relation to the pay reduction.

It also appears that difficulties arose regarding the duties that the complainant was required to perform in the course of his employment with the respondent. The complainant claimed that he was a mechanic and that his duties should be confined to that aspect of the business.   He also stated that if shortages occurred at the sales counter that the respondent threatened to take the money from his wages but accepted that this had not happened in reality. In early 2014 the complainant was issued with a job description which included a broad range of duties attached to the hiring out and repair of hire tools and equipment. The complainant also said that he had not received a contract from the respondent. There was no evidence that the complainant had specifically requested a contract from the respondent after the transfer of the business. The respondent, for their part, did not produce a contract in respect of the complainant. The matter of duties appears to have been unresolved at the time the complainant went out on sick leave in June 2014.  

I accept that the complainant had a grievance in regard to his work duties and pay at that time.   I also accept that he had never been issued with a copy of the Grievance Procedure until he received same until November 2014. The issue before me, however, is whether the complainant’s decision to resign in September 2016 falls within the criteria of a constructive dismissal. The complainant engaged a HR Consultant in October 2014, informing the respondent that it was “in an effort to resolve my employment difficulties with you amicably.”   There followed correspondence and a meeting between the respondent and the consultant. The consultant did not attend the hearing to give evidence.   The respondent stated that no details regarding bullying and harassment of the complainant were given at the meeting other than a complaint about overwork but that the consultant had suggested that a redundancy settlement might provide a solution. The final correspondence in this regard was in February 2015.

All these events took place at least eighteen months prior to the decision of the complainant to resign.   While the complainant may have had valid grievances in 2013 / 2014 and was not then aware of the procedures in relation to processing these grievances, by the end of 2014 he had retained professional representation and had been copied with a copy of the company procedures in this regard.

The Employment Appeals Tribunal in Case No. UD2314/2010 stated:

It is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer is given an opportunity to resolve the issues.

The EAT went on to point out that the burden for a complainant in a constructive dismissal case was a very high one and that it was necessary for the complainant to show that there was a significant breach going to the root of the contract or the conduct of the respondent was so unreasonable such as to prevent the complainant from carrying out his contractual duties.

Having carefully considered all the evidence and submissions in this matter I find that the complainant’s claim of a constructive dismissal in September 2016 does not meet these criteria and accordingly the complaint under the Unfair Dismissal Act 1977 fails.