Complainant

Respondent

Anonymised Parties

Desktop Engineer

IT Service Provider

Representatives

Self

Mr Des Ryan BL instructed by in-house counsel.

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-00014144-001

22/09/2017

The Complainant is a Desktop Engineer employed by the Respondent on 29/02/2016 and left employment on 20/09/2017. A complaint was received by the Workplace Relations Commission (WRC) ON 22/09/2017. The complaint is referred under section 8 of the Unfair Dismissals Act, 1977 – the Complaint is alleging that he was constructively dismissed by the Respondent.

At the time of his departure from the Respondent company the Complainant’s basic wage was €28,000 per annum.

1.       The Complainant commenced employment at a contract on Sir John Rogerson’s Quay in Dublin.

2.       The Complainant received an email on 22/08/2017 requesting that he cover duties on other sites during the holiday period.

3.       The Complainant became quite nervous and stressed at this request and sent an email to his manager informing her that he was unable to cover work on another site. The Area Manager then sent him an email informing him that he would be rostered for duties for a few days on this other site.

4.       The Complainant then sent the Area Manager an email informing her that it was his intention to resign, this email was sent on 22/08/2017 at 16.35.

5.       After a few days the Complainant tried to retract his resignation at which point he was informed it was too late to do this as the process of recruiting his replacement was well underway and that at that point interviews were being conducted.

6.       The Complainant maintains that the Area Manager was to call him the following Monday, when she did not the Complainant sent an email asking when his P45 would be available.

1.       The Complainant resigned from employment – he was not constructively dismissed. It was a straightforward resignation.

2.       In the nineteen months of his employment the Complainant tendered his resignation three times. It was accepted on the third occasion.

3.       On 29/08/2017 the Complainant thanked his Area Manager for all her support with the ‘personal chat’ they had and that he understood her decision in terms of accepting his resignation. The Area Manager informed the Complainant that since this was the third time the Complainant had resigned from the Respondent company that they (the company) would accept the resignation. The Area Manager offered to extend the notice period and offered the opportunity to discuss the matter further.

4.       On 30/08/2017 the Complainant stated that the Area Manager was being very decent – these are not words one would expect from an ex-employee who later claims constructive dismissal.

5.       Emails dated 29th and 30th August 2017 will show that the Complainant does not dispute this was the third time handing in his resignation.

6.       Engineers like the Complainant are expected to work on different sites when the need arises. No training is required when engineers move to different sites as the job remains the same.

The Complainant accepted and signed a contract of employment on 25/02/2017, there is a clause contained within the contract that reads as follows:

‘The Company reserves the right, upon reasonable notice, to require you to undertake any duties which fall within your capabilities or to transfer you temporarily or permanently to reasonable alternative places of work within the UK. You will not be required to work outside of the UK for a period of more than one month’

Whilst I will not comment on the reference to UK or any other reference in relation to UK legislation this clause does make the point that employees are expected to be flexible, within reason, on work locations etc., The point is made that the Complainant accepted this clause in his contract.

In claims of constructive dismissal, because the employee has terminated his contract of employment, the fact of dismissal will be in dispute and the burden of proof therefore lies with the employee. Section 1 of the Unfair Dismissals Act of 1977 reads 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 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 to the termination to the employer”.

In this instant case the Respondent employer has requested the Complainant to work on another site as cover over another employee’s holiday leave. In doing this the Respondent employer has asked the Complainant to do something that he has accepted via his contract of employment.

In constructive dismissal the burden of proof carries a high bar for the Complainant to get over. The Respondent has a Grievance Procedure in their comprehensive employee handbook – the Complainant has chosen not to utilise this procedure.

I note that the Complainant had on two previous occasions tendered his resignation. Companies have Grievance Procedures in place and they are there for a purpose and that purpose is for the benefit for employees. There is a volume of case law in which claims for constructive dismissal have failed through employees not utilising these procedures.

Having heard the parties at hearing and reading through the submissions made I have given this matter a lot of thought. I cannot find in favour on the Complainant. I believe the Complainant resigned from his position and by not allowing him to rescind his decision the Respondent has not turned a resignation into a valid claim of constructive dismissal. For these reasons the complaint fails.

Constructive Dismissal