UDD1744

Background

The complainant commenced employment with the respondent in July 2014 in his capacity as a security guard. His contract describes him as a casual worker and guarantees him a minimum of 16 hours work per fortnight. The complainant carried out security work at premises of clients of the respondent. It is not in dispute that there was an incident in the location where the complaint was working on the night of the 17^thApril 2016. On the Workplace Relations Complaint Form in which the complainant initiated his complaint he gave the date on which his employment terminated as 22^ndApril 2016. At the commencement of hearing of this appeal he confirmed that as the date upon which he considered himself as having been constructively dismissed.

Complainant’s case

The Complainant told the Court in evidence that on the night of 17^thApril 2016, whilst he was at his place of work, there was a power cut which resulted in an alarm going off. He followed what he understood to be the procedures in relation to incidents of this nature. He then finished his shift and went home. He worked his next rostered shifts on Wednesday 20^thand Thursday 21^stApril 2016 on the same client’s site. On Friday the 22^ndof April he received a text message at 13.47 from the National Control Centre (NCC) informing him that he was being removed from that site with immediate effect and that a named manager would be in touch.

The complainant stated that he only saw the text at around 5.00pm on the day in question when he was preparing to leave home for work. He was shocked at the content of the text and he could not understand why he was being removed from the site. Approximately 20 minutes later he phoned the operations manager named in the text. The manager advised him that he was being removed from the site as he had not followed protocol in relation to the incident involving the alarm activation on the 17^thApril 2016. His recollection of the conversation was that it got quite heated and that he was told that if he wanted to talk to the manager about being removed from that particular site he should do so through his union.

The complainant confirmed in his evidence that it was following this telephone conversation that he considered himself to have been constructively dismissed. He referred to some issues that had arisen earlier in the year but accepted that they had been resolved and he had not pursued them any further. The complainant indicated that by calling the manager in question he had tried to resolve the issue with the employer. He stated that the phone conversation lasted for three to five minutes approximately.

Respondent’s case

The operations manager of the respondent gave evidence confirming that an incident had taken place on the client’s site on the 17^thApril 2016. The witness only became aware of the incident at a meeting with the property manager at the client’s headquarters on the 18^thApril 2016. It was his responsibility to investigate the incident and report back to the client. He visited the site in question and he checked the incident report book in which this alarm activation should have been recorded. There was no record of this occurrence logged in the book. He told the Court that he had spoken to the person who had worked the shift following the incident and his recollection was that they had not been briefed on the incident. The operation manager stated in evidence that he tried to call the complainant both from his own phone and the site phone but he got no response. No phone records were provided to the Court in support of this evidence.

It was the operations manager’s evidence that the complainant phoned him on the 19^thApril 2016 and not the 22^ndof April as stated by the complainant in his evidence. He stated he was not aware until the complainant mentioned it in evidence that a text had been sent to the complainant on the 22^ndof April 2016. According to the witness, this is a matter that he would have to investigate. It was confirmed by the respondent to the Court that the phone number that the text had come from was a company number but not the operation’s managers phone number. The operations manager, initially stated in evidence that in the course of the phone call the complainant had raised the issue of his removal from the site. However, he then went on to say that in the course of the phone call he had informed the complainant that the client no longer wanted him working on that site and that he was being removed with immediate effect. The operations manager could not recall what action he took to remove the claimant from that particular site following the phone call other than that he had notified the NCC. He was quite clear that there was only one phone call and that it happened on the 19^thApril 2016.He did not dispute that he had advised the claimant to contact his union if he wished to discuss the issue.

In his evidence the operations manager disputed the fact that the claimant had worked on the client‘s site on the 20^thand 21^stof April 2016 but, he could not state who had covered those shifts. However, a document contained as an appendix to the respondents written submission showed that the complainant had been scheduled to work for two twelve hour shifts on the site in question on those dates. This document contained a reference to having been printed on 14^thJune 2017 The operations manager could not explain why the schedule was not amended if the claimant did not work the shifts on that site and they were assigned to someone else.

The applicable 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,”

Section 6(1) of the Act states

“ 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”.

Issues for the Court

As dismissal as a fact is in dispute it is for the complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.
Section 1of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must be“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”as held
Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he is justified in leaving. It is this latter reasonableness test that is relied upon by the complainant.

Discussion

The question that arises for decision in this case is whether, it was reasonable for the complainant to terminate his employment because of the respondent’s conduct.
It is clear that the complainant did not submit a letter of resignation nor did he in anyway convey to the respondent the fact that he considered himself constructively dismissed. The Complainants evidence is that he considered himself constructively dismissed from the 22^ndApril 2016. Nonetheless, he continued to engage with the respondent by email in relation to a grievance which he had and declined to report for work pending the resolution of this grievance. The complainant’s evidence is that following the text on the 22^ndApril 2016 and the subsequent phone call on that date, he felt he had no option but to consider himself constructively dismissed.

The respondent’s position is that the claimant was not dismissed and that his job is still available. The respondent denies that there was a phone call between the complainant and his operations manager on the 22^ndof April 2016. However on that particular issue the Court prefers the evidence of the complainant.

Findings of the Court.

The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act. In reaching its conclusion on that question the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submission made by the parties.

The Court notes the complainant’s position that, having received the text removing him from the client’s premises, he tried to resolve the issue with his employer by contacting his operations manager. The Court also notes that the Complainant confirmed in evidence that he was aware of the company’s grievance procedure but did not use it as he did not believe it would be of assistance to him.

In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (seeConway v Ulster Bank LimitedUDA474/1981).

InBeatty v Bayside SupermarketsUD142/1987, in referring to the need to utilise grievance procedures, Employment Appeals Tribunal held:-

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

On the other hand inAllen v Independent Newspapers (Ireland) Limited[2002] ELR 84 the Employment Appeals Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances. However, in the instant case, the Court is not satisfied that there were factors present which might excuse the Complainant’s failure to formally complain to the Respondent before resigning. The Respondent had a grievance procedure in place and the Complainant was aware of its existence.

On the facts of this case the Court cannot see how it could realistically be said that the respondent was guilty of conduct in relation to the complainant which was such as to entitle him to terminate his employment without having sought to ventilate and resolve whatever grievance that he had through the internal procedures. Moreover, the complainant had the benefit of trade union representation and he was advised by the operations manager to raise any issues which he had in relation to his relocation with the respondent through his union. The fact that he failed to do so negates any possible basis upon which his subsequent decision to resign could be regarded as a reasonable response to the situation then pertaining.

Determination

In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal nor was such as to show that the respondent no longer intended to be bound by one or more of the essential terms of his contract of employment. Accordingly the court must hold that the complainant’s employment did not come to an end by dismissal.

The Court determines that the Complainant’s 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



Louise O'Donnell
9 October 2017______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.