Complainant

Respondent

Anonymised Parties

General Operative

Timber Merchant

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-00004782-001

23/05/2016

The complainant was employed as a General Operative in a sawmill operated by the respondent.   The complainant commenced employment with the respondent in June 2000 and terminated his employment on 2 February 2016. The employment was on a full-time basis. The complainant’s claim is that he was constructively dismissed.

The complainant was endangered by a lack of safety in the workplace.

The complainant did not receive proper training and the working conditions were dangerous.

The complainant was subjected to bullying and harassment by members of management.

The respondent unreasonably interfered with the complainant in the performance of his duties as a retained firefighter.

The complainant was left with no alternative but to resign.

The respondent refutes the allegations regarding lack of training and unsafe working practices.

The claims of harassment and bullying are without foundation.

The complainant had to be warned as to his conduct towards other employees.

The complainant was facilitated with extra unpaid leave at his request.

The respondent did not give their consent to the complainant taking up a position as a retained firefighter.

The respondent believes that the complainant terminated his employment to take up the position of retained firefighter.

The respondent operates a sawmill and employs about 12 employees. The complainant in evidence stated that he had had continuous concerns regarding what he felt were unsafe work practices in the workplace. He had not received proper training in the operation of fork-lifts and other machinery. He further stated that some of the machinery was old and did not meet present standards as regards safety. He instanced the fact that the respondent had substituted used cooking oil from a chip shop for proper chainsaw lubricant. Safety equipment had not always been supplied and he bought his own hi-vis vest. The complainant also said that the owner had made remarks when he had to bring his wife to hospital during her pregnancy and also after he required medical treatment for an injury sustained at work. On other occasions that he was spoken to it was done in areas of the premises not covered by CCTV. He felt that he was being blamed for other people’s mistakes. The complainant also stated that he had had a desire to become a firefighter and had attended training in this regard at his own expense. Part of his reason for becoming a firefighter was the fact that he was on the minimum wage with the respondent and required further income. In December 2015 he was appointed to the position by the local authority and issued with a beeper. As it happened there was no call-out during working hours for the first two months. The complainant was due to attend training in February and intended to use his annual leave in this regard. In mid-January the owner approached him and told him that he could not attend the training and that the owner would ensure that he did not do so. The complainant subsequently received a phone call from the Station Officer informing him that his training was cancelled.   The complainant felt that he could no longer remain in the employment in these circumstances and that he had to resign.

There were three witnesses on behalf of the respondent. The main witness was the owner and Managing Director of the business who refuted the issues raised by the complainant regarding health and safety in the workplace. The premises were inspected twice a year by the insurers. There was an incident book kept in the office but the complainant had never logged any issues or faults in that book. The witness had on occasions reprimanded the complainant for not wearing proper headgear. As regards the position in the Fire Service the witness was not aware that the complainant had taken up such a position. The witness stated that if requested he would not have given consent as the requirements of the business would not allow an employee to drop what he was doing to respond to a call-out. When he became aware that the complainant was seeking further time off for training he spoke to the complainant and informed him that he could not do two jobs. He then contacted the local authority and queried whether they had a consent form from the employer with regard to the complainant. The council accepted that they had not and said that they would deal with the matter. On Tuesday, 2 February 2016 the complainant went home to lunch and did not return.   He subsequently resigned.

The second witness was the owner’s son and Assistant Manager. He stated that he had not received any complaints or grievances from the complainant. In 2015 he became aware that the complainant was training for the Fire Service and assumed that this was with a view to getting a full-time position with them. He had a conversation with the complainant in this regard and this reinforced his view.   The witness agreed to facilitate this training if possible. The complainant was allowed 6 weeks extra leave at his own expense. The witness provided a reference for the complainant and this again was to facilitate an application for a full-time position in the Service. The witness accepted that they had allowed an employee to be a retained fire-fighter previously but that had been a good while ago and it had caused issues.   The present system whereby employees worked in pairs would not allow that now.

The third witness was a former employee who had worked in the office during the time of the complainant’s employment. The witness stated that there was safety equipment kept in the office and also an incident book. She was not aware of the complainant raising an issue. The witness had had a conversation with the complainant about him joining the Fire Service but her understanding was that his plan was to leave his present employment and go on the dole if his application was successful.   Early in February 2016 the witness was contacted by the complainant and asked to prepare his P45 form as he was not returning to work. The witness tried to discourage him but was unsuccessful and she therefore processed his forms. The witness confirmed that she had earlier done out a reference in relation to the complainant for the Fire Service and that the Assistant Manager had signed it.

The complainant in this case is claiming constructive dismissal. This is defined in the Unfair Dismissals Act, 1977, 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 practice this requires the complainant to prove that because of the employer’s conduct he was entitled to terminate his employment and that it was reasonable for him to do so.   The EAT in UD1775/2010 stated:

An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

The reasonableness test asks whether an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to tolerate it any longer and justifies the employee leaving.

The EAT went on to add:

Except in very limited situations an employee must exhaust all avenues for dealing with his / her grievances before resigning.

In applying these principles to the case before me I accept that there were certain practices regarding health and safety in the workplace which from time to time irked the complainant. These were, however, spread out over a period of time. Some of these issues may well have been mentioned in conversation by the complainant to members of management. It was also accepted that no formal grievance procedure existed within the respondent company. Nevertheless, if these matters were of such serious concern to the complainant to the extent that he was considering leaving the employment then surely he would have found a means of formally putting the employer on notice to that effect. A letter or an entry in the incident book are two ways that come to mind. On the basis of the evidence before me I do not believe that these issues were the trigger which caused the complainant to resign from his employment.

The other issue between the parties was the matter of the complainant taking up a position as a retained fire-fighter. This was a position that the complainant aspired to and this aspiration was known in the workplace. It would appear from the evidence that in the year leading up to his appointment that the employer had facilitated extra time off at the complainant’s own expense and that the complainant had utilised this time to train for the Fire Service. The Assistant Manager had provided a reference for the complainant to the Service.   The evidence of management was that they believed that the complainant was seeking a full-time position as a firefighter and that, if successful, he would resign from his position with the company. The complainant’s evidence was that as there previously had been a retained firefighter in the employment of the company he did not believe that there would be an issue in this regard.

Most Fire Services in rural areas employ retained firefighters. These people do not work full-time for the service and may have other employment. The application form for these positions contains a section where a person in employment must have the consent of his employer to take up the position. It would appear that the complainant was appointed as a retained firefighter in December 2015 but that he had not sought the permission of his employer in this regard. There were no call-outs during working hours in the first two months of the appointment but matters came to a head in January 2016 when the issue of leave for training arose. The employer made it clear that they were not agreeable to the complainant performing both functions and then brought it to the notice of the Fire Service that there had been no consent from the employer in relation to the complainant being employed by the Service.

It was shortly after this that the complainant abruptly left his employment. By his own account he left at lunchtime without notice. He subsequently contacted the office looking for his P45 Form. In applying the test of reasonableness to these actions I find the complainant lacking in this regard. It was clear that he required the consent of his employer before taking up a position with the Fire Service. That consent was never formally sought. Relying on a precedent that dated back a number of years was not a substitute for the requirement for consent. To proceed with the application without consent and then resign without notice when that consent is not forthcoming is not a reasonable action. In withholding that consent the respondent was acting within the law and was not breaching an important term of the contract of employment. There was, additionally, no evidence of the complainant exhausting all avenues for dealing with the issues prior to resigning.   For all these reasons, therefore, I find that the complainant was not constructively dismissed.

For the reasons set out above I find that the complainant did not act reasonably in resigning and that therefore his claim for constructive dismissal under the Unfair Dismissal Acts, 1977 – 2015, fails.