Complainant

Respondent

Anonymised Parties

A Door Supervisor

A 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-00017138-001

29/01/2018

The Complainant in this case was employed by the Respondent as a Door Supervisor from the 25th April 2016 until 27 January 2018 when he resigned from the Respondent company. On the 29th January 2018 a complaint was received by the Workplace Relations Commission (WRC) – the nature of this complaint was that the Complainant was alleging that he had been constructively dismissed from the Respondent company.

The Complainant was working for 12 hours per week for which he received payment of €144.

On the 13th January 2018 the Complainant was assigned to work alongside the brother of the Managing Director, this was the first time he had been assigned to work with this gentleman.

It is alleged by the Complainant that the gentleman in question abused him a few times and was asking “Do you know who I am”? – “I am the brother of your boss so I am your boss and you need to listen to me”. It is also alleged that the same gentleman called the Complainant ‘a piece of shit’ and went onto to aggressively grab the phone from the Complainant when he was trying to make a call to the office to complain about the behaviour of the gentleman in question.

When the Complainant eventually managed to contact the Managing Director on the phone he was immediately asked “What is your problem” or “stop fighting with him”.

The following day the Complainant sent an email to the Managing Director and the Operations Manager with his resignation. This email was worded as follows:

Dear xxxxx (name inserted),

In regard to last night incident with your brother yyyyy (name inserted) who abusing me and action taken by you please see attached my resignation.

Kind regards,

After sending this email the Complainant maintains that no one from the Respondent company made contact with him in an attempt to address and/or resolve the problem.

Throughout his period of employment, the Complainant always worked weekends and sometimes during the week but after sending in the email with attached resignation he was removed from the roster and he was not notified of this removal from the roster.

The Complainant also alleges that he was not paid for his final week of working or his P45.

1.       The complainant was a general operative employed as a door security provider under a contract with the Respondent from 25.04.2016.

2.       The complainant claims he had to leave his employment due to the conduct of his employer or others at work. This is disputed.

3.       The Claimant has at least 12 months service, this is not disputed.

4.       The Claimant has not initiated the grievance procedure as per his contract of employment and as such has not exhausted all alternatives to handling and address his grievances.

5.       The Respondent case is that on the 25.07.2016 the claimant was provided with a contract of employment, which he signed, containing at page 7 – 8 the company’s grievance procedures. The claimant failed to invoke the grievance procedure. The Respondents claim they received a call from the Complainant on or about the 13th January 2018 and asked him to call into the office during the week to discuss same in line with their grievance procedures, despite this the Respondent failed to engage and the Respondents received the Complainants notice on the 14th January 2018 via email less than 24 hours later.

6.       The Respondents deny that any decision was made and no blame was allocated to either party as the Complainant did not allow the Respondent to investigate the complaint by handing in his notice the following day. On receiving this notice the Respondent’s state they attempted to contact the Claimant via mobile phone on a number of occasions to discuss the email they received to no avail. The respondents deny the allegation that no one attempted to contact him.

7.       The Claimant alleges that despite handing in his two weeks notice he did not receive any hours/rota, this is denied by the Respondent and in this regard we will refer to text messages with hours sent to the Complainant.

8.       The Complainant is claiming Unfair Dismissal and not non-payment of wages. It is denied that the Complainant is owed any outstanding pay as he was allowed and paid for more holidays than he was entitled.

9.       The WRC’s document entitled Procedures in the investigation and adjudication of employment and equality complaints provides as follows in relation to constructive dismissal claims:

“At the time if lodging of the complaint form, the complainant must give as much detail as possible on the form itself. The complaint must set out the facts leading to the constructive dismissal including, where relevant, details of grievance procedure followed, investigation undertaken by the respondent, and where appropriate, any legal points the complainant may wish to make. If no statement is received from the complainant in these cases the director general may decide to dismiss the complainant for non-pursuit”.

In this particular case the claimant has not provided particular dates/times of the alleged incidents, nor has he provided detail of the complaint made to his employer in line with the grievance procedure and allowed the employer to investigate the complaint. In these circumstances the complainant’s complaint is premature and should be dismissed.

On 25th July 2016 the Complainant received a written contract from the Respondent, this is quite a comprehensive document (9 pages) and contains a Grievance Procedure. This document is signed by both the Complainant and Respondent.

This Grievance Procedure consists of a 5-stage process – these are as follows:

Stage 1 – a meeting will be held within two working days of receipt by the unit manager of a documented grievance.

Stage 2 – if the matter is not resolved at this stage a meeting will be held as soon as possible, but not more than four working days after the first meeting. In addition to the unit manager and the staff member, will be the senior manager.

Stage 3 – if the matter is still unresolved the parties will seek advice of an external body to mediate.

Stage 4 – Employees may be accompanied by a colleague at any stage of the grievance procedure if they so wish.

Stage 5 – The registered agreement also provides for grievance procedures in certain circumstances.

There is no evidence that the Grievance Procedure was utilised by the Complainant.

There are two distinct grounds for constructive dismissal:

1.       Where the employee has a contractual entitlement, which has not been honoured by his/her employer or

2.       Where it was reasonable for the employee to terminate his/her contract without giving prior notice to the employer as a result of the employer’s treatment of / behaviour to the employee.

To establish a constructive dismissal case the employee must (ideally) be able to show:

1.       There was a breach of contract and /or unreasonable conduct by the employer.

2.       The employee formally complained to the employer in relation to the said breach and /or conduct.

3.       The employer failed adequately or at all to address the grievance.

In this instant case the Complainant telephoned the Respondent on 13th January 2018 and outlined the incident with the officer he was working with (brother of the Managing Director) and was asked to come into the office to discuss same in line with the company grievance procedure. Rather than accepting this request from the Respondent the Complainant emailed his resignation to the Respondent on 14th January 2018.

I also note that the Complainant’s letter of resignation reads as follows:

Dear xxxxx (name inserted),

Please accept this letter as my formal notice of resignation from (name inserted). My last day will be 27th January 2017, two weeks from today.

I appreciate your support during my tenure here and take with me the valuable experiences I have gained over the last two years. It has been a pleasure working with you and the team.

Please let me know how I can help during this transition. I wish you all the best as the company continues to grow.

Best Regards,

(Note – the last day, I believe should be 27th January 2018 and not 2017 as typed in letter above).

In determining an issue of constructive dismissal, I have to consider whether an agreed/established Grievance Procedure existed in the employment in question, and if such was in place, whether the parties availed themselves of its provisions.

Case law:

·         Beatty v Bayside Supermarket Ltd UD 142/1987.

·         Conway v Ulster Bank Ltd UD 474/1981.

In this instant case the Complainant telephoned the Respondent and failed to take up the request that he call into the office to discuss the incident under the Grievance Procedure as outlined in his contract of employment.

It is for this reason alone that I have to deem the complaint as not being well found and therefore the complaint fails.

The Complainant was not unfairly dismissed.

The complaint under section 8 of the Unfair Dismissals Act, 1977 fails.

Constructive Dismissal: Failure to utilise Grievance Procedures.