Complainant

Respondent

Anonymised Parties

An Employee

A Car Rental Company

Representatives

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-00009588-002

07/02/2017

Complaint    seeking adjudication by the Workplace Relations Commission under Section 39    of the Redundancy Payments Act, 1967

CA-00009588-003

07/02/2017

1. The   Complainant commenced work as a driver/cleaner on 27 April 2014
2. He   requested an increase in work hours
3. This   was given to him but by 2016 he was working shifts that were unsafe; for   example doing a 6 day week when he finished work at midnight but was back to   work the next day at 5am.
4. He   was given extra hours to clean the building and toilets and also was paid   extra to photograph cars before they were rented.
5. He   requested more pay for his hours
6. He   was told that he would not be paid more
7. He   went on sick leave on the advice of his doctor
8. He   was on sick leave from September 2016 until January 2017
9. He   gave in his notice in January 2017 when he had obtained a job in which he was   paid better and the work hours were better.
10. His   claim is for constructive dismissal
11. He   has no loss of income
12. He   had to leave my job
13. He   told my manager twice in September 2016 and in December 2017 that if he wasn’t   paid more for the work that he did or else if he wasn’t allowed do a reduced   working week that he would have to   find other work
14. In   September October 2016, during his sick leave period, he asked that his   manager allow him to work a 30 hour week rather than the 48 hour week that he   was doing. He never asked to do a 15 hour week.
15. He   did not take a complaint under the Organisation of Working Time Act 1997 for   rest periods
16. He   took exception to the Respondent saying that the reason that he was stressed   was because he and his wife had a new baby.
17. He   was stressed because of the unsafe shift arrangements that were in place
18. It   was under his doctor’s advice that he asked for a 30 hour week
19. He   accepts that he has suffered no loss of income since his left his job
20. He   never received a copy of the Company Grievance Procedure. All he received,   with his contract, were cover pages of various Company policies; on   disciplinary procedure and grievance procedure. However he received only the   cover sheet, not the policies themselves.
21. He   knows nothing of a grievance procedure

1. He had to leave my job
2. He told my manager twice in September 2016 and in December 2017 that if he wasn’t paid more for the work that he did or else if he wasn’t allowed do a reduced working week that he would have to find other work
3. In September October 2016, during his sick leave period, he asked that his manager allow him to work a 30 hour week rather than the 48 hour week that he was doing. He never asked to do a 15 hour week.
4. He did not take a complaint under the Organisation of Working Time Act 1997 for rest periods
5. He took exception to the Respondent saying that the reason that he was stressed was because he and his wife had a new baby.
6. He was stressed because of the unsafe shift arrangements that were in place
7. It was under his doctor’s advice that he asked for a 30 hour week
8. He accepts that he has suffered no loss of income since his left his job
9. He never received a copy of the Company Grievance Procedure. All he received, with his contract, were cover pages of various Company policies; on disciplinary procedure and grievance procedure. However he received only the cover sheet, not the policies themselves.
10. He knows nothing of a grievance procedure

1. The   Complainant started work in April 2014
2. He   was a very good worker and was keen to obtain extra hours
3. His   manager allowed him work extra hours; doing extra cleaning (the building and   the toilets) and taking photographs of cars before they are rented.
4. His   manager gave the following evidence:
5. I   sometimes gave him loans of money because I knew that he was short of money   at times.
6. This   had the effect that he was doing sometimes in excess of 48 hours per week,   but rarely
7. No   complaint was made about shift patterns being unworkable.
8. It   was only when he went on sick leave in October 2016 that I realised that   there was a problem.
9. At   first he just left and came in a week and a half later with a sick   certificate claiming stress.
10. In   November 2016 he came in to the office and asked for 15 hours per week
11. He   said that if he wasn’t allowed do this that he had no option but to resign.
12. I   told him that there were no part-time positions in the company. That it were   full time positions only.
13. I   offered him a shift pattern; an early start shift one week, a late shift the   following week; but he did not take   this offer up
14. He   came into the office again in January and asked for a part-time position or   else he would have to leave. I said again that there were no part time   positions available.
15. He   told me to send his P.45 in the post
16. He   did not use the Company grievance procedure
17. He   told me twice that he would leave if he could not get part-time hours

Redundancy

The Complainant accepts that there was not a redundancy   situation and consequently this complaint is not well founded and fails

Unfair Dismissal

This is a case of constructive dismissal. In cases such as   these, in order to succeed two criteria   must be met:

1. The conditions of work must be such that it became impossible for the Complainant to continue on in his work.
2. The Respondent must be on notice of the fact that the Complainant considers his position to be untenable before he leaves.

I accept the evidence of the Respondent’s manager and of   the Complainant who both agree that the Complainant warned the manager that   he would leave the employment if his work hours were not sorted out. This   conversation was had on a sporadic basis in that it occurred on occasions when   the Complainant was delivering sick notes into the company during the sick   leave period of September 2016 –January 2017.

The evidence of the Complainant, as to why the work was   not tenable and what the manager says was reported to him, is at variance.

The Complainant says he complained about three things; pay   , the fact that the shift patterns were impossible to maintain (finishing   work at midnight and being on duty again at 5am the next day) and the fact   that he was not being permitted to work a 30 hour week.

The Manager says that it was that he wanted a reduced   working week, which was not possible to comply with.

It is notable that no complaint was taken under the   Employment Equality Act 1998 based on disability and the duty on employers to   make reasonable accommodation to employees suffering from a disability.

On the evidence available to me I do not find that the   test for a constructive dismissal -   whereby that the conditions of work were untenable for him to continue with –   to have been met.

I accept the evidence of the manager that a shift pattern   option (late shift/early shift) was offered to him on a per week basis. I   consider that this was a reasonable offer but it was not accepted by the   Complainant. In his evidence he said he followed the advice of his doctor who   told him to not accept the offer but instead to seek alternative work. He   believed that had he accepted the offer, before long it would revert back to   impossible work hours.

I think, bearing in   mind the good relationship that he had with his manager, that the Complainant should have tried this   reasonable option before rejecting it and his failure to do so, means that   the case for a constructive dismissal must fail.

I accept the evidence of the Complainant, that he never   received a copy of the grievance policy and therefore I do not base my   decision on the fact that he failed to follow a grievance policy that he   never had.

I accept too that   he did warn the Respondent of his intention to leave unless his hours were   sorted out. But I think that the only terms that were acceptable to the   Complainant in Autumn 2016 was doing a 30 hour week and as this was not   available, the Respondent cannot be criticised for not allowing him to do   this.

Having considered all the evidence both oral and written   in this case I find that it is not well founded and fails