Complainant

Respondent

Anonymised Parties

Security Officer

Security Company

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-00012624-002

18/Jul/2017

The Complainant was employed as a ‘Specials Officer’ Security Officer from 8th September 2015 to 28th July 2017. She was paid €10.01 per hour. She has claimed that she was constructively dismissed. She has sought compensation.

She believed that she was on a zero hours contract. She never declined any offer of work except the move to Dun Laoghaire. She had to decline her original work in the city due to family commitments that prevented her from working week-ends. She had applied for week-ends off but she was unable to get it. After a few weeks she was offered a post in Dun Laoghaire but declined as it was not worth her while to travel there for work. She was out sick from 7th July to 4th or 8th August. However, she requested her P45 on 28th July 2017. She stated that before she requested her P45 she spoke with her manager at head office about her grievances regarding the hours of work that she got and her pay. She was unhappy with that outcome so she had no option but to resign her position and she requested her P45. She believed that she had exhausted the grievance procedure. She has claimed constructive dismissal and has sought compensation. She has mitigated her loss and found alternative security work.

The Claimant’s contract of employment was a “Specials Officer” Security Officer. These Officers deal with last minute needs to assist with emergency patients, there are no controls to anticipate all the demands of the business and while rosters are posted one week in advance there are contingency requirements or last-minute requirements also. An examination of her working records show that she worked between 25 to 42 hours per week excluding her absences, illness and holidays. In June 2017 she finished up at a major client’s base because she was not available to work weekends, which was a requirement of that job. She was offered alternative work in Dun Laoghaire to commence a few weeks after the other job ceased. She declined that job due to travel difficulties. She was certified unfit for work from 7th July to 4th or 8th August 2017. On 26th July 2017 she requested her P45. After she declined to take up the work in Dun Laoghaire she was not rostered. She then decided to leave in order to get Job Seekers Allowance. This claim is rejected. She declined to work weekends which was a requirement of her job. She was offered a job in Dun Laoghaire but she declined it. She did not raise a formal grievance with the Respondent. They were unaware that she was thinking about resignation.

Definition of constructive dismissal

Sec 1(b) of the Unfair Dismissals Act states, “the termination by the employee of his/her contract of employment with his/her 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 a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition, there must have to be something wrong with the employer’s conduct.

In UD 1146/2011 the EAT held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

Tierney v DER Ireland Ltd UD866/1999 “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

I note in the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaustthe grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated,”In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”. Also the respondent’s conduct was “not so unfair or so damaging to the claimant’s rights and entitlements that she hid no option but to resign her position”

Murray v Rockavill Shellfish Ltd [2002] 23 ELR 331 the EAT stated, “It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

I note that the Complainant was employed as a ‘Specials Officer’ Security Officer. There were no guaranteed hours of work and it was regularly a last-minute requisition for services which made the rostering of work more precarious.

I note the conflict of evidence concerning whether the Complainant was on a zero hours contract. I note that the Respondent stated that no Specials Officers were on zero contract hours.

I note the conflict of evidence regarding the offer of hours of work.

I note that the Respondent stated that the Complainant had worked between 25 and 42 hours per week, based on their records.

I note that conflict of evidence regarding the offer of alternative static/retail work.

I find that the Complainant due to family circumstances was unable to perform week-end duties.

I find that week-end work was an inherent part of the job that she had.

I find that she declined that work.

I find that the Respondent found alternative work for her in Dun Laoghaire but the Complainant declined it because of the distance to travel.

Therefore, I find that the Complainant declined work.

I find that the Complainant was not justified in her claims about her pay and I refer to ADJ 11252 decision.

I find that the Complainant’s meeting with her manager did not constitute the raising of a formal grievance that might give rise to a forced resignation.

I find that the Complainant was employed in a very specific contract of employment that did not provided regularly rostered work and she knew that.

I find that she declined work for family reasons and she was offered alternative work but she declined that also.

I find that she stated that the Respondent was unaware that she was contemplating resigning her position.

I find that she has not established that she had no option but to resign her position.

I find that the Respondent’s conduct did not force her to resign.

I find that she declined work.

I find that she has not established a case of constructive dismissal.

Constructive Dismissal