ADJUDICATION OFFICER DECISION

An Employee –v- A Security Company

Adjudication Decision Reference: ADJ-00004345

Complaint(s)/Dispute(s) 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-00006261-001	03/08/2016

Date of Adjudication Hearing: 13/01/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

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 submissions:

The complainant commenced work with the respondent in July 2014. In late 2015 he was covering shifts for two companies in Tallaght. One of those was a bank and one was a drinks company. In March, 2015 he was suspended with pay in relation to an issue on the drinks company site. That matter was resolved and when he came back to work he was working on the bank site only.

On the 17th April, whilst he was working at the bank site an alarm when off. He turned off the alarm, took a phone call from the banks security office and then checked the premises. Everything seemed to be in order. He wrote it up in the incident book and thought no more about it.

On the 22nd April, 2016 when he was leaving home to complete the third night shift in that rostered cycle, He received a text message telling him he was being removed from my work site with immediate effect. He contacted his Manager to ask why this arbitrary action was being taken. His manager, in an aggressive tone told him that he had failure to follow alarm response procedures on the previous Sunday.

He was annoyed as there had been no contact with him on the issue prior to this, despite him having work two shifts at the bank since the incident.

On 25th April he e-mailed a formal complaint about the operations manager’s conduct. The complainant included a detailed description of how he dealt with the false alarm activation. He said it was in complete compliance with instructions he had been given by the respondent.

He received no response from the respondent in April. At the end of May, he received a phone call. During the course of that call, reference was made to a letter apparently sent a few days earlier. He did not get that letter.

On the 17th June, he did receive a letter dated 16th June, inviting him to a hearing on 14th June.

In a subsequent phone conversation HR said a further letter would be sent. It was never sent and he hasn’t heard from them since.

On 20th July he sent an ‘ultimatum’ e-mail to HR asking them to respond to his complaint within seven days. There has been no reply.

He state that the respondent made no effort to contact him or to address his complaint. They failed to roster him for a period of two months. He came to the conclusion that he had been constructively dismissal.

Respondent’s submissions:

An incident did occur at the site of the bank on the 17^th April, 2016. The respondent was only made aware of this at a meeting with the property manager at the bank’s headquarters on the 18^th April, 2016. They were obliged to investigate the matter and to furnish their client with a report following that investigation.

Following that meeting, the operations manager when out to the bank to check the incident report book. There was nothing logged for the 17^th April. He then called the complainant but here was no answer from his mobile phone. He was then instructed by their control centre to remove the complainant off the roster for that site, with immediate effect. He text the complainant. On the 19^ththe complainant called the operations manager. They had a discussion about the incident. He was asked what procedure he followed in relation to the incident and had he logged it in the incident report book. He told him that it was ‘ not his job as he was only a static officer’ . He then informed the complainant that the respondent had to carry out an investigation into the matter and report back to their client. He was advised to go to his union and that his union representative could represent him at the investigation. The union never made contact with the respondent.

The respondent received the complainant’s grievance via e-mail on the 25^th April, 2016. The respondent offered the complainant shifts over the coming weeks but he refused to do them. He stated that he wanted his grievance dealt with before he would return to work. The respondent need to carry out the investigation in relation to the bank incident, prior to the complainant’s grievance. They needed to have the information relevant to the complainant’s grievance. It needed the complainant to engage in that process but he refused to. The complainant never returned to work after that.

The respondent stated that the complainant’s job is still there for him should he wish to return.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“ 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 the 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”

—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

Section 3, In this section “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the claimant. He must show that his resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven then it is obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate his contract of employment.

No evidence was adduced during the hearing in relation to a breach of the complainant’s contract of employment. I must then establish, based on the facts whether or not it was reasonable for the complainant to terminate his own contract.

The parties agree that there was in incident at the bank on the 17^th April. The complainant is of the opinion that he followed the correct procedure following that incident. Had the complainant followed the procedure it would not have come as a surprise to the respondent when they were informed about it on the 18^th. Also, there was nothing logged in the incident book. The respondent was entitled to commence an investigation into the matter whether their client requested it or not. I find that the complainant did not engage with the respondent in relation to that investigation and when offered different shifts refused to accept them.

It is on that basis that I find that it was not reasonable for the complainant to terminate his contact of employment.

The complainant’s case pursuant to the Unfair Dismissals Act , 1977 fails.

Dated: 2^nd May 2017