Complainant

Respondent

Anonymised Parties

Security Officer

Property Support management service.

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-00017079-001

25/01/2018

This is a complaint of constructive dismissal.

The complainant transferred into the respondent company on 11 August 2015 following a Transfer of Undertaking. His service was continuous since August 2011.

He is employed as a security officer. He works 45 hours a week. His gross salary is €1,492 per fortnight.

The complainant maintains that the respondent ignored the many legitimate concerns which he put to them. The last straw for him occurred for on 16 July 2017 when he wrote to the respondent about preferential rates of pay being paid to other employees doing the same work.

He did not have trust or confidence in the operations manager Ms O, the person designated to deal with his issues.

He submitted his resignation on 18 September 2017.

He submitted his complaint to the WRC on 25/1/2018.

The dismissal is contested.

The complainant is employed as a security guard with the respondent.

He submits that he was constructively dismissed.

Following the transfer which he dates as 27 October 2014, matters disimproved for the complainant. He had to pursue the respondent for the correct pay rates; he had to make efforts to secure night- time allowances. The respondent rectified this. He had to refer the calculation of his annual leave entitlements to the WRC and on to the High Court.

He was routinely put in charge in the workplace.

His safety was endangered. Between 2016 -2107 three incidents occurred in which he sustained bodily and other injuries in the course of his work. On 6 August 2016 he injured his quadriceps (leg) muscles while restraining an intruder. He injured his shoulder in February 2017. On 29/6/2017, while protecting the property, he was beaten around the head. He sustained a chipped tooth and was hospitalised.

He brought these incidents to the attention of the Senior Operations Manager.

He had no confidence in her commitment to resolve issues as she had not dealt adequately with previous issues which he had put to her and wanted the Director of the company to attend to his issues.

On becoming aware of the difference in the pay rates, he wrote to Ms O, Senior Operations Manager on 16 July 2017, seeking a meeting with senior management, the Head of Operations or the Director. She invited him to attend a meeting with her or the national account manager of the client with whom he worked. He had no confidence in these two persons as they had been involved in previous grievances.

The cumulative effect of the complaints which he had to lodge against the respondent under TUPE regulations, under the Organisation of Working Time Act ,1997, under the Payment of Wages Act, 1991 when combined with his awareness on July 2017 of colleagues doing the same work and earning superior rates of pay amounts to a breach of his contract and behaviour so unreasonable as to justify his resignation. The complainant’s barrister contends that Ms O could have responded to his email of 16 July explaining that different sites attracted different rates of pay. Aside from the previous complaint concerning pay ,he was entitled to raise current concerns regarding pay.

The complainant understood that there is a process but he had no confidence in it as his previous complaints, dealt with within the company initially, were referred to the WRC, but failed because of time limits.

The complainant’s barrister cites the English Court of Appeal decision of Omilaju v London Borough of Waltham Forest (2004) EWCA Civ 1493 in support of the argument that knowledge of his inferior pay rates constituted the” last straw” for the complainant. That case concerned an employee whose salary was deducted while attending a tribunal dealing with a series of complaints. The court elaborated its thinking on the concept of the final straws in complaints of constructive dismissal. The court considered the final straw to be the last in a series of acts or incidents which cumulatively amounted to a repudiation of the contract by the employer. The last straw had to contribute, however slightly, to the breach of the implied term of trust and confidence. There was no need to characterise the final straw as 'unreasonable' or blameworthy'. It can be different to the earlier acts which a complainant might identify to demonstrate that loss of confidence and trust is reasonable in the circumstances. His email of 16 July was for him the last straw coming on top of a series of previous complaints.

He alleges that the respondent had breached his contract and behaved so unreasonably as to justify his resignation.

The complainant is on medication for anxiety and depression.

He went on disability benefit one month after his resignation and remains in receipt of same.

The respondent disputes that a dismissal occurred. The complainant willingly resigned from his position on18 September 22017 giving one month’s notice.

The reasons cited by the complainant in his letter of resignation of 18 September 2017 are

“Continuous breaking of his contract of employment,

Organisation of Working Act,

Payment of Wages Act,

TUPE Act,

Health and Safety Act,”

JLC rates for the security sector.

The respondent advises that the alleged breaches of the Organisation of Working Time Act, the Payment of Wages Act and TUPE issues were previously addressed in the WRC, the Labour Court and even the civil courts. A personal Injuries claim is in train on behalf of the complainant. Different pay rates had been dealt with in a complaint under the Employment Equality Act, 1998 in 2016

The respondent emailed the complainant on 24 July 2017 in response to his email of the 16 July saying that she or the national account manager for the client whose premises the complainant had been assigned to would be happy to discuss his concerns and if dissatisfied with the outcome of his discussion with her, he could then proceed to discuss them with the Head of Operations.

In relation to the injuries, the respondent states that another employee reported the incidents. The respondent offered the complainant the option of counselling but he declined that option. He never advised the respondent that he had sustained a chipped tooth.

The respondent invited the complainant to discuss his resignation with him on 25 September but the complainant did not respond.

The respondent states that in light of the statutory definition contained in section 1 of the Act of 1977 as amended, the established principles adopted by the EAT and the courts, the onus lies with the complainant to demonstrate that

his resignation was justified. owing to a breach of his contract

and/or

The employer had acted so unreasonably as to make the continuation of his employment intolerable and, and it was reasonable for the employee to resign.

The respondent maintains that neither requirements have been met in this case.

There was no breach by the respondent of the complainant’s contract. The respondent’s behaviour was not so unreasonable as to justify his resignation.

The respondent relies on the contractual test for constructive dismissal which was set out in Conway v Ulster Bank, UD 474/1981. The tribunal found that the no change occurred in the contract to” make it so radically different from what was before”. Neither did the respondent in that case breach any term of the contract its organisation policies implied or otherwise. This is mirrored in the respondent’s behaviour in the instant case.

The respondent relies on the decision of McCormack V Dunnes Stores, UD,1421/2008 which in relation to the reasonableness test said

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his /her employer. The employee would need to demonstrate that that the employer’s conduct was so unreasonable as to make the continuation of the employment with the particular employer intolerable”

The respondent states that the they engaged with the complainant on the 3 separate claims which he took against them. In the TUPE complaint they were found to have breached the regulations and they rectified this. He worked his months’ notice which they contest is evidence that the workplace was not intolerable. The complainant did not comply with the requirements of the grievance procedure.

His letter of resignation refers to alleged repeated breaches of his contract of employment. But these had been disposed of previously in the WRC. No grievance concerning these matters was raised subsequent to the hearings into these matters.

The respondent asked to meet him after his letter of resignation and he declined to engage with them.

The respondent maintains that the complainant has failed to meet the required burden of proof. His complaint cannot succeed.

The Unfair Dismissals Act, 1977.

Constructive dismissal is defined in s 1. of the act, as

“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 is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

The burden of proof rests with the complainant in a complaint of constructive dismissal. The tests for constructive dismissal were set out by Lord Denning, MR in Western Excavating (ECC) v Sharp (1978) and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

“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 discharged from any further performance”.

The reasonable test was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected t put up with it any longer, the employee is justified in leaving”

The proofs which the complainant must advance to prove his case are that the behaviour of the respondent and of which he complains corresponds with the requirements laid out in one or both of the two tests and was behaviour which left him with no option other than resignation.

The complainant states that the respondent has breached the implied term of trust and confidence by the series of acts culminating in the ‘last straw’ incident which is the complaint of differing pay rates and the request to meet the senior manager and not Ms. O to deal with this. The complainant was offered an opportunity to discuss the differing pay rates with Ms O and dates were given. Differing pay rates are not automatically indicative of a failure to maintain trust and confidence.

There is no term in the complainant’s contract which entitles him to restructure the grievance procedure or to select which member of management he will or will not meet. Even in the absence of such a term the complainant has not submitted adequate evidence to demonstrate how the failure of the respondent to agree to his choice of negotiator is a breach of the implied term of trust and confidence which he is entitled to enjoy. I do not consider that this incident of the 16 July corresponds to the requirements set out in Omilaju. That decision implied that the’ final straw’ was the final link in the series of acts perpetuated by the employer which cumulatively amounted to a breach of the implied term of trust and confidence. But the case demonstrating how the acts which preceded the final straw incident amounted to a breach of trust and confidence was not made out. A referral of complaints to the WRC is not conclusive evidence of a breach of the implied term of trust and confidence.

Did the respondent’s behaviour meet the threshold of behaviour so intolerable as to conclude that resignation was the only option?

The letter of resignation dated 18 September 2017, submitted by the complainant lists complaints about the historical failure of the respondent to address complaints. That failure to secure a satisfactory outcome to those complaints led him to submit his complaints to the WRC. They were dealt with at that stage. This is not contested. Neither is the respondent’s statement that the complainant did not raise grievances associated with the historical matters via the grievance procedure after the WRC hearings. These are recycled complaints submitted as part of the chain of events which he insists compelled him to resign.

He did raise the differing pay arrangements in different sites in his email of the 16 July 2017. He was invited to attend a meeting and was given specific dates but he chose not to avail of this opportunity. He states that he had no confidence in the ability of the Ms O to deal with his concerns. It is true that Ms O could have explained the reasons for different rates based on different sites. But no adequate evidence was submitted to explain why the complainant could not suspend his disbelief, engage with the Senior Operations Manager and if it yielded little, then refer the matters to the Head of Operations. General statements about the fact that matters which she had previously dealt with ended up in the WRC is not sufficient to eliminate her from the resolution process. It is not a sufficient reason to abandon the grievance procedure.

The injuries which the complainant reports he sustained in the course of his work are unacceptable. But he must give the respondent an opportunity to deal with these matters. He declined the counselling which the respondent offered to him. He did not contest the respondent’s statement that he chose not to report that he had chipped a tooth after the incident on the 29 June 2017. That incident was reported by a colleague also involved in the situation. He did advise that he has submitted a personal injuries case. He did not advise of any other mechanism which he identified to the respondent and which the respondent rejected for purposes of addressing threats to his safety.

The respondent was on notice of ill health but his medical certificate of May 2017 does not attribute his ill health to the workplace.

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

He raised the issue of his salary on the 16 July. He was offered dates for a meeting on the 24 July. He chose to forego those opportunities. He did not activate the grievance procedure. The requirement to do so in cases of constructive dismissal has been identified in McCormack V Dunnes Stores, UD,1421/2008 , and in Terminal Four Solutions v Rahman, UD 898/2011 and has been followed in many other decisions. The complainant resigned on the 18 September.

I do not find that the complainant has submitted evidence which meets the heavy burden of demonstrating that the respondent’s behaviour was so intolerable as to leave him with no choice but to resign.

I do not find the complaint to be well founded.

Constructive dismissal; failure to comply with the grievance procedure; some complaints already dealt with in a different forum.