UDD1863

Background

The Complainant commenced employment as a full-time Bin Lorry Driver on the 27^thMarch 2003. His employment was transferred under a transfer of undertakings arrangement to the Respondent on the 28^thNovember 2011. The Complainant was contracted to work 40 hours per week Monday to Friday excluding overtime. Issues arose in relation to the non-collection of bins/ failure to complete runs in November / December 2015 and the failure to inform his line Manager of same. The Respondent invoked their disciplinary procedures. The outcome of the disciplinary procedure was that the Complainant received a first written warning in January 2016 which was to remain on his file for twelve months.

The issue of non-collection of bins / failure to complete the assigned run and failure to inform his line Manager recurred in February 2016. The Complainant was invited to an investigation meeting in relation to those breaches on the 17^thFebruary 2016 but failed to attend. The meeting was rescheduled for the 23^rdFebruary 2016 and the Complainant again failed to attend. The Complainant ultimately attended an investigation meeting on the 11^thMarch 2016.

Following on from this meeting the Complainant was invited to attend a disciplinary meeting on 24^thMarch 2016. The meeting was adjourned to reconvene on 1^stApril 2016 but the Complainant failed to attend on that date. The meeting was conducted in the Complainant’s absence and by letter dated 5^thApril 2016 the Complainant was advised that he was being issued with a final written warning which would remain on his file for twelve months. The Complainant was informed of his right of appeal which he chose not to exercise.

The issues set out above recurred later in April 2016 and an investigation meeting was scheduled for the 15^thApril 2016, but the Complainant failed to respond or engage in the meeting. At the meeting the Complainant was advised that he was being suspended on full pay pending a disciplinary hearing. The disciplinary hearing was held on the 22^ndApril 2016.

Immediately following the disciplinary hearing, it emerged that the Complainant had submitted a grievance complaint relating to excessively long daily routes and long hours. The disciplinary process was put on hold pending an investigation of his grievance. A meeting to investigate his grievance was scheduled for 9^thMay 2016 and meanwhile he remained suspended on full pay. A number of grievance meetings were held during May, June and July 2016 culminating with a meeting scheduled for the 13^thJuly 2016 so that the Complainant could go through the records he was querying. The Complainant failed to attend that meeting. The outcome of the grievance process was issued on the 21^stJuly 2016 and found that his claim was unfounded. The outcome of the disciplinary process was also issued and that resulted in him being placed on a second final written warning which would remain on his file for 12 months.

The Complainant was invited to attend a meeting on the 28^thJuly 2016 to discuss his return to work. The Complainant did not attend the meeting. Following on from that correspondence was exchanged between the Complainant and the Respondent which cumulated in the Complainant informing the Respondent by letter of 27^thAugust 2016 of his decision to resign from his position with immediate effect.

Dismissal is in dispute in this case.

Complainant’s case

The Complainant in his evidence to the Court did not dispute the sequence of events set out above.

It is his contention that it was not possible to complete the routes assigned to him in the allotted time and that in the interests of health and safety he had to leave some tasks unfinished. It was the Complainant’s position that, although the Respondent had changed his route, over time the new route he was assigned to had expanded therefore impacting on his ability to complete the route within the time allocated. It is the Complainant’s contention that he had sought computer-generated printouts of the daily workload as it was his view that this would support his contention in relation to his workload. While some documentation was shown to him he questioned the accuracy of same. The Complainant in his evidence did not dispute that he had failed to attend meetings and on occasions when he had attended that he had failed to engage with the process.

The Complainant accepted that he was provided with an opportunity to appeal the second final warning. He did not avail of same as he was unhappy that he was being asked to return to work in advance of the appeal hearing. It is the Complainant’s contention that the issuing of a second final written warning to him in July 2016 by the Respondent was a breach of their own disciplinary procedure and that in the circumstances set out above he had no option but to tender his resignation.

Respondent’s case

The representative for the Respondent agreed with the sequence of events set out above. It is the Respondent’s case that no dismissal took place. The Complainant was placed on a second final written warning and the Respondent sought to engage with the Complainant in relation to his return to work. Once the decision in relation to the disciplinary case had been taken there was no reason for the Complainant to remain on suspension and his return to work had no potential to impact on his appeal should he choose to lodge one. The Respondent sought to engage with the Complainant in relation to his return to work and kept his position open until the 1^stNovember 2016. It is the Respondent’s position that the Claimant has failed to establish a prima facia case that a dismissal occurred.

The applicable law

Section 1 of the Acts defines constructive dismissal in the following manner

“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,”

Section 6(1) of the Acts states

“ Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Issues for the Court

As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Acts.
Section 1of the Acts envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is often referred to as the “contract test”.
In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”
an employer must be“guilty of 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 as discharged from any further performance”.
Secondly, there is the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether or not the employer has conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, he or she is justified in leaving. It is this latter reasonableness test that is relied upon by the Complainant.

Discussion

The question that arises for decision in this case is whether or not it was reasonable for the Complainant to terminate his employment because of the Respondent’s conduct.
The Complainant submitted a letter of resignation dated 27^thAugust 2016 in which he cites breaches of terms and conditions of employment including working hours, failure to follow the Company disciplinary procedure and failure to grant a date for a grievance appeal except on strict personal conditions as the reasons why he believed he had no option but to resign. The Complainant could not in his submission or oral evidence to the Court point to any breach relating to his working hours. It was his contention that on occasions when the Respondent offered him overtime this was a breach of his working hours. In relation to the breach of their own disciplinary procedure it was the Complainant’s contention that when they placed him on a second final written warning rather than dismissing him they breached their own procedure. He also raised issues in relation to records which he alleged breached his trust and confidence in the Respondent.

The Respondent’s position is that the Complainant was not dismissed and that his job was available to him up until the 10th November 2016. The Respondent on receipt of the letter dated 27^thAugust 2017 wrote to the Complainant on the 31^stAugust 2016 encouraging him to reconsider his position and to re-engage with the Company. They received no response to that letter. The Respondent issued a further letter on the 1^stNovember 2016 advising that if the Company did not hear from the Complainant by Thursday 10^thNovember 2016 they would reluctantly accept his resignation and process same. The Complainant did not respond to that communication either.

Findings of the Court

The net issue for consideration is whether or not the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Acts. In reaching its conclusion on that question the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submissions made by the parties

The Court notes the Complainant’s position that he believed the Respondent to be in breach of their own procedure. The Court also notes that the Complainant declined on numerous occasions to engage with the Respondent’s procedures.

In constructive dismissal cases the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (seeConway v Ulster Bank LimitedUDA474/1981).

InBeatty v Bayside SupermarketsUD142/1987, in referring to the need to utilise grievance procedures, Employment Appeals Tribunal held:-

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

On the other hand, inAllen v Independent Newspapers (Ireland) Limited[2002] ELR 84, the Employment Appeals Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances.
However, in the instant case, the Court is not satisfied that there were factors present which might excuse the Complainant’s failure to exhaust the Respondent's internal process before resigning. The Respondent had a grievance procedure in place and the Complainant was aware of its existence.

On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle him to terminate his employment without having sought to ventilate and resolve whatever grievances he had through the internal procedures.


Determination

In all the circumstances the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal nor was such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of his contract of employment. Accordingly, the Court must hold that the Complainant’s employment did not come to an end by dismissal.

The Court determines that the Complainant’s complaint is not well-founded. The appeal is rejected. The Decision of the Adjudication Officer is affirmed.

The Court so Determines.



Signed on behalf of the Labour Court



Louise O'Donnell
CC______________________
5 December. 2018.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.