ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003888
Complaint for Resolution:
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-00005690-001 | 06/07/2016 |
Date of Adjudication Hearing: 09/11/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
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.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Night Sales Employee | A Service Station |
Complainant’s Submission and Presentation:
The complainant contends that he was constructively dismissed in that he had no choice but to leave his employment following a lack of support or concern on the part of the respondent. On the 2.10.15 while at work at a rural petrol service station the complainant was the victim of an armed robbery; The complainant suffered a terrible fright/ psychiatric shock as a result of this incident and was forced to hand over cash; The complainant was not afforded and help, counselling or medical assistance from his employer after being held gun point; The complainant has been suffering psychologically since the incident; The complainant was initially denied pay for the night of 2.10.15 as the premises had to be closed for garda investigation; The complainant made several requests including 2 written requests to improve the security at his place of work following the incident; The employer failed, refused or neglected to carry-out any of the proposed works or changes to improve security; The complainant was left with no alternative but vacate his position as a result of the poor security and intolerable work conditions. At the hearing it was further contended that the complainant had not furnished with written terms of conditions contrary to the Terms of Employment (Information) Act 1994. |
Respondent’s Submission and Presentation:
The respondent objects to consideration of the complaint under the Terms of Employment (Information) Act 1994 as it had not been submitted or the respondent had not been put on notice of such a claim. In any event, copies of the complainant’s contract were submitted in evidence. It is accepted that the complainant had been working at the Station when an armed robbery took place. While he subsequently made a number of suggestions regarding the security of the site to his then manager, the issues he raised only came to the attention of the respondent in February 2016 at which point management at a higher level immediately met with him to discuss the matter. The issue of the complainant being unhappy with working nights arose, and management agreed to consider the possibility of him working on the day shift. However, the complainant indicated that he had other offers of employment and he subsequently resigned. It is submitted that the complainant made no mention of being forced to resign and the reason he left his employment is that he found alternative work.
Decision:
The complaint that the complainant was not furnished with written terms of conditions of employment was not submitted before the hearing and I therefore find that it was not properly notified to me or the respondent in advance and I therefore decline jurisdiction to rule on that complaint.
The definition of constructive dismissal is contained in Section 1 of the Act as follows:
“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”
In considering whether the complainant in this case would have been entitled to terminate the contract without notice, I have taken into consideration the following facts:
Following a traumatic incident, there was a lack of on-site support from the then manager, who was an agent of the employer. Also the fact that two clear letters dated 2nd October and 7th October 2015 went unanswered, in the immediate aftermath of the situation. I accept that management tried to rectify the shortcomings later but the psychological contract between the complainant and his employer was clearly broken by then. I uphold the complainant’s complaint that he was unfairly dismissed by way of constructive dismissal. I find that compensation is the appropriate remedy and I have taken into account the point made by the complainant’s representative regarding financial loss. I recommend that a payment of €1,550 be made by the respondent to the complainant,
Dated: 14 March 2017