Complainant

Respondent

Anonymised Parties

A cleaner / janitor

A facilities company

Representatives

Michael McGrath, IBEC

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-00010767-001

10/04/2017

The complainant is a Romanian national and in March 2011 he commenced employment with the respondent as a cleaner. The respondent company is a global facilities services provider and employs around 7,000 people in Ireland. The contract to which the complainant was assigned was a newly established research facility on a university campus. Six of the respondent’s employees were assigned to the contract; a facilities manager, a receptionist, a supervisor and the complainant and two other cleaners who worked three hours per day. The complainant was contracted to work 40 hours from 11.00am to 7.00pm, Monday to Friday. When the supervisor left in 2012, he wasn’t replaced and from then on, the complainant reported to the facilities manager, who we will refer to as Mr B.

Having started as a cleaner, the complainant said that after six months he was asked to serve tea and coffee to the visiting academics and guests. By the time he was in the job for a year, he was arranging lunches and evening receptions. His responsibilities included ordering food from a catering company, setting up tables, laying out food and clearing up afterwards. This was in addition to his cleaning job and his working day started at 8.00am instead of 11.00am, although he still finished at 7.00pm. He said that he became exhausted and stressed out and he discussed his long hours and working conditions with Mr B. He said that Mr B asked him to keep going and to “hang tough” because if the client was impressed, he might get a job directly with them as a facilities co-ordinator. The contract between the respondent and the client was renewed in 2014 and again in 2016, but the complainant was not offered a position with the client. He worked the long hours until September 2016, when he was instructed to revert to a 40 hour week.

The complainant sought the advice of a solicitor who wrote to the respondent on October 25th 2016. The company did not engage with the solicitor, but instead invited the complainant to a meeting in accordance with stage two of the grievance procedure.   By March 2017, the procedure had moved to stage three, a meeting with the operations director. At that meeting, the complainant said that he wanted to leave and he requested a termination payment. The outcome of the grievance procedure was summarised in a letter dated March 22nd from the operations director in which she concluded that there was no substance to any of the complainant’s concerns.

On March 25th 2017, the complainant gave notice of his intention to resign and he left his job on April 7th. In his complaint form, he said that he had lost trust in his employer and they had no respect for him. He said that he had worked under pressure, in the expectation that he would get a better job and he felt he had been deceived.

As a complaint of constructive dismissal, the burden of proof rests with the complainant to show that his decision to leave his job was reasonable in the circumstances that prevailed at the time.

March 2011 - Starting off on the New Contract

At the hearing, the complainant described the early days of his employment when the research facility was newly opened and the client organisation started to arrange events for visiting academics, guests and students. He described how he took on extra work serving refreshments and eventually, he became responsible for catering. At the hearing, the complainant presented a schedule with details of the food and refreshments served from 2011 until December 2016.   From this schedule, it is apparent that the food offering expanded significantly from 2011 onwards. For example, in November 2011, 433 servings were provided, but in November 2016, this had increased to 2,340 servings.   As a result of taking on additional responsibilities, the complainant started to work longer hours. At the hearing, he said it was stressful trying to ensure that he managed the catering jobs as well as ensuring that the cleaning was done to the standard required by the client.

2014 - Renewal of the Contract with the Client

In 2014, the contract between the respondent and the client was renewed. Before the new contract was signed, the complainant said that he approached Mr B and suggested some changes so that he wouldn’t have to do the job of cleaning and catering. He said that he also asked for a pay increase. When the contract was renewed, he said that Mr B told him that there was no budget to implement the changes he suggested and he was advised to wait until the contract was up for renewal again in 2016. The complainant said that Mr B encouraged him to keep going with the situation as it was, suggesting that he was in a good position to get a job directly with the client. In March 2015, the complainant said that his hourly rate was increased by €1 per hour, back-dated to October 2014. At this point, he said that he was instructed not to work more than 48 hours a week.

To manage the cleaning and the tasks associated with the catering part of the contract, the complainant said that he worked from 8.00am until 7.00pm every day, equivalent to over 50 hours per week. He said that as he continued to try to manage all his responsibilities and work the long hours, he became exhausted and stressed out. When he was asked about the rate of pay for working in excess of his contracted hours, the complainant said that he received time and a half for the first four hours of overtime and double time after that.

2016 – the Contract with the Client is Renewed for a Second Time

In 2016, the contract was up for tender again but there was no discussion with the complainant about the fact that he was working very long hours and in his view, doing two jobs. The contract was renewed between the respondent and the client for the second time and in February 2016, Mr B himself became an employee of the client. The complainant said that in March, he approached Mr B about a role for himself, but Mr B told him that the client did not intend to take on anyone else.

As Mr B had moved to become an employee of the client, from around March 2016, the complainant began reporting to a new facilities manager, who we will refer to as Ms T.

Realising that there was no merit in continuing to demonstrate his willingness to be flexible and take on extra work, the complainant said that he asked Ms T for a pay increase and he also asked her to recruit someone to do the catering job.   At the hearing, he said that he felt that there was about eight hours’ work per day available for another person, and that he could revert back to the role of cleaner, the job for which he had been recruited. He said that he got no response and in September, when he was on holidays, Ms T changed his roster and he was instructed to work eight hours per day, the hours stipulated in his contract. On his return from holidays, the complainant said that he had a meeting with Ms T and he told her that it was impossible to do his cleaning job and the catering job in eight hours and that he would revert to just cleaning.   According to the complainant, Ms T said that he would have to be flexible or his hours might be reduced.   He also said that she advised him that if he wasn’t happy about the situation he could leave. He was instructed to give jobs to the other staff who worked three hours a day. He said that he reverted to working eight hours a day from then on.

Raising of a Grievance

On October 25th 2016, a solicitor for the complainant wrote to the company and asked them to address his concerns:

“According to our client’s instructions he has carried out significant increased duties outside the scope of his job description for the last number of years which would be over and above his duties as per his contract of employment in relation to cleaning and acting as a janitor. We note that his role has expanded to that of catering and he is enduring a very stressful roster. He has continued to serve a significant number of students who attend the site on a daily basis and is working significant hours. He has been given some minor increases in pay over a number of years but nothing to reflect the level of work and commitment involved and sacrifices made on a personal level with his family to carry out duties that are over and above those expressed to be his duties in his contract of employment.”

In his letter, the solicitor went on to state that he intended to lodge a complaint with the WRC but he also opened the door to resolving the matter between the parties when he stated:

“If you are seeking address (sic) the matter directly with this office in relation to (the complainant) prior to any complaint being lodged, you might please contact this office by return and you might please take note that we will be proceeding with a complaint to the Workplace Relations Commission within the next 7 days from the date hereof.”

At the hearing, the complainant said that before this letter was sent to the respondent, he told his solicitor that he wanted to leave and to be paid compensation; however, the letter from the solicitor made no mention of this. A complaint was not lodged with the WRC at this time.

The respondent did not reply to the solicitor but instead, the operations manager, who attended the hearing and who we will refer to as Mr G, wrote to the complainant on November 29th 2016, and invited him to a meeting in accordance with stage two of the company’s grievance procedure.

By March 2016, the procedure had moved on to the next stage, where the complainant had a meeting to present his concerns to the operations director. Stage three concluded with a letter from the operations director on March 22nd which sets out her response to the seven agenda items as follows:

1. The complainant’s grievance about the accuracy of the notes of the meeting at stage two was not upheld.

2. There was no record of any concern raised by the claimant with Mr B about hours of work or onerous responsibilities and his grievance on this matter was not upheld. The complainant was unhappy with the imposition of a 40 hour limit on his working hours in circumstances where, in his mind, he was required to do two jobs. However, his grievance with regard to this matter was not upheld.

3. The complainant alleged that he was promised that he would get a job as facilities co-ordinator with the client, but the operations director said that she was not aware of any conversations with the client about this and his complaint was not upheld.

4. The complainant was aggrieved that he was not consulted when a new contract was negotiated with the client in 2016. This element of the grievance was not upheld, as it would not be normal practice to consult with employees at the time of the renewal of a contract.

5. The complainant alleged that Ms T told him that if he had a problem with how his concerns had been resolved, he could leave. Ms T denied making this statement and this element of the grievance was not upheld.

6. The complainant said that he was disappointed with how he had been treated by the company in the manner in which he had been over-worked for a number of years. Ms M found that if the complainant had raised this issue sooner, it would have been dealt with sooner and this grievance was not upheld.

7. Finally, Ms M rejected the complainant’s suggestion that he be paid a termination payment of €50,000.

As the grievance procedure was initiated by the respondent, details of how the complainant’s concerns were managed are set out in the next section of this document.

Notice of Resignation

When he received the letter of March 22nd confirming that there was no substance to any of his concerns, the complainant sent an e mail to Ms T, letting her know that he would be leaving in two weeks and his last day at work was April 7th 2017.

On April 3rd, in response to his letter of resignation, Ms M sent a letter to the complainant stating as follows:

“I must note that this resignation comes at a time when I recently issued an appeal outcome to you regarding your recent grievance.   Whilst my decision was not in your favour, I believe that we can move forward from this point and as a valued (name of the company) employee I am now writing to ask whether this is really what you want to do. Should you wish to reconsider your resignation, I ask that you contact me by Monday, 3rd April 2017.”

The letter was written on April 3rd.

It goes on:

“Should you wish to proceed with your resignation, I would ask that you please confirm your resignation in writing to me at (e mail address) at which point I will accept your resignation effective from 25th March 2017 and process the termination of your employment and forward any monies which may be outstanding to you following your final date of employment of 7th April 2017.”

At the end of his evidence, the complainant said that he didn’t know what it meant to move to stage 4 of the grievance procedure, which involves a referral to the WRC, although the company said that he had been given a copy of the employee handbook.   He said that took the advice of the Free Legal Aid Centre and resigned and pursued his claim for unfair dismissal.   He said that he has not worked since and has been claiming job-seeker’s benefit. He also said that he has spent some time at home in Romania.

Summary of the Complainant’s Reasons for Resigning

Having listened to his evidence at the hearing, the reasons for the complainant deciding to terminate his employment can be summarised as follows:

1. He was disappointed because, in his view, Mr B promised him, if he continued to do the catering work in addition to his cleaning job, he would get a job as a facilities co-ordinator with the client. He felt that Mr B abused his power and his position of authority by encouraging him to continue to work long hours and to do two jobs so that he would be in a favourable position with the client when the contract was up for renewal in 2016;

2. When he raised the grievance, his hours were reduced to 40 hours per week, and as a result, his income was reduced;

3. In September 2016, he was instructed to continue to do the cleaning and catering, but in 40 hours per week;

4. He felt that the client and the respondent company had taken advantage of him and as a result, he decided to leave.

At the hearing of this complaint, the sequence of events outlined in the previous section was reflected in the respondent’s submission. There was no dispute about the details of the grievances raised by the complainant. The respondent accepted that he had worked in excess of 40 hours per week for a number of years and that he had done the job of cleaner and also carried out additional responsibilities associated with an increasingly busy catering function.

The grievance procedure has a standard format and the first stage involves an effort to resolve matters directly with an employee’s immediate manager. The second stage involves an appeal to the immediate manager’s “superior.” The third stage involves a referral to the next line of management and the final stage is a referral to a Rights Commissioner or the Labour Relations Commission. The document has not been updated to reflect the establishment of the WRC in 2015.

Stage Two of the Grievance Procedure

In response to the letter from his solicitor, the complainant was invited to a meeting at stage two of the grievance procedure. He was informed that he could be accompanied by a work colleague or a trade union official. At the hearing, he said that the company told him that they would not deal with his solicitor. On December 8th 2016, he attended a meeting without representation.   The minutes of the meeting record that the complainant said, “I didn’t have anyone available to come with me, but I am happy to proceed.”

The minutes of this meeting were presented in evidence and record that the complainant said that the main thing he wanted to discuss was his working conditions, and this issue was addressed last. The order in which the items were dealt with were as follows:

Rate of Pay

It appears that Mr G gave an undertaking to investigate the possibility of a salary increase, while not giving any commitment in this regard.

Overtime Rates

The complainant said that from a certain date in 2016, he was paid overtime after 39 hours.   However, prior to that, overtime was paid after 40 hours. Mr G said that he would investigate this issue also.

Hours of Work

Under this heading, the minutes of the meeting note that the complainant said:

“When I was told that I can’t work over 40 hours I was worried because I can’t do all my tasks without going over 40 hours. But I am no (sic) ok with this as we have rosters in place.”

Working Conditions

Finally, at the meeting with Mr G, the issue of working conditions was raised. The complainant produced the spreadsheet that he submitted in evidence at the hearing, showing the increase in the foodservice offering from 2011 to 2016. He said that in the early days in 2011, he got help from the receptionist, but she had to stop because the reception desk was being left unattended. He said that some days there are more than 100 people in the facility requiring refreshments and he does all the work himself, and then the cleaning. He repeated that he felt it was impossible to do all this work in 40 hours. He was asked at the meeting if he had raised his concerns with anyone before and he said that he “said ok to these jobsat the start to keep my manager and the client happy, and to keep my job.” At the start, he said it was “a favour,” but “now it’s five years a favour.”   He said “it’s too much. I have reached my limit.” When asked again if he had raised the problem with anyone he said that another manager knew, but that Mr B was difficult and sometimes he abused his power by asking me to do additional work and if I didn’t he score low audits.”

When he was asked to expand on this at the hearing, he said that at one stage, Mr B asked him to clean a window and he refused. He said that Mr B gave a poor mark in an audit as a result. The minutes note that in response, Mr G said that he couldn’t investigate an allegation of abuse of power by employees that no longer work for the respondent.

On January 13th2017, the operations manager wrote to the complainant with a response to the issues raised at the grievance meeting the previous month.   The following is a summary of how the issues were addressed:

1.   Rate of Pay

Mr G confirmed that the complainant received pay increases in March and October 2015. He also stated that an increase of 2% would be effective from April 1st 2017.

2. Overtime Rates

Mr G said that he investigated the complainant’s grievance with regard to the point at which overtime kicked in and whether it applied after 39 or 40 hours. It appears that overtime should have been applied from 39 hours and the complainant was entitled to €3,927.75 in unpaid overtime. This was paid in January 2017.

3.   Hours of Work

New rosters were in place at this stage and the complainant was scheduled to work just 40 hours each week. Mr G stated that as the complainant had said that this was no longer a concern, the matter was closed.

4.   Working Conditions

Mr G proposed that the roster arrangement be reviewed on a weekly basis to ensure that there is visibility of what was being asked of the complainant with respect to the requirement for catering and cleaning jobs. He said that he would review the client’s requirements and revert back to the complainant with regard to his responsibility for catering and events.

The Complainant’s Response to Stage Two of the Grievance Procedure

From his evidence at the hearing, it is clear that the complainant was extremely frustrated and distressed with the company’s response to his grievance. On January 16th 2017, he sent an e mail to Mr G and said that he felt that the minutes of the grievance meeting were incomplete and did not reflect the points that mattered to him. Mr G phoned the complainant and said that he would be on site the following day and would meet him. The complainant said that Mr G told him that he couldn’t deal with the promises that the complainant said Mr B had made to him in 2014 and 2016. On January 17th, he wrote again to Mr G and, referring to a document he was trying to retrieve to corroborate his position that he had raised his concerns with Mr B and Ms T in the past, he informed the operations manager that he had asked his solicitor to locate the document, and “until then please I make it official claim for compensation and termination of contract.”

Stage Three of the Grievance Procedure

On February 3rd, the complainant sent an e mail to the operations director to initiate stage three of the grievance procedure. It is clear from the tone of the e mail that it was written by the complainant’s solicitor, who challenged the veracity of the minutes of the meeting at stage two:

“I refer in particular to the statement at Point A in which it stated that “you confirmed that you had not raised this as a concern originally.” This statement is not true and I did not say that at the meeting. I did raise all these concerns a number of times, with Mr B and also with (another named manager) and Ms T.

“My concerns were not dealt with and ignored. Certain commitments were made to me to hold tough in my role and to continue with the extremely overworked manner in which I was dealt with by the company. I was effectively doing two jobs, dealing with many extra duties over and above what was my job description.”

The e mail goes on to describe the complainant’s most recent engagement with Ms T:

“When I raised the issue recently with (Ms T) she essentially told me that I had to do the job I was doing and if I had a problem with that, I should go.”

A meeting was scheduled for February 16th 2017 with the operations director, who we will refer to as Ms M. A note-taker for the company also attended and the complainant attended without representation. The outcome of this meeting was confirmed by letter on March 22nd 2017.   The following is a summary of the outcome of stage three of the process:

1. The complainant was aggrieved because in his view, the notes of the meeting at stage two did not reflect what was discussed.

The operations manager’s position was that as the complainant signed the minutes of the meeting which took place on December 8th in accordance with stage two of the grievance procedure, his grievance with respect to this matter was not upheld.

2. The complainant raised his concerns previously with Mr B and Ms T about his hours of work and his concerns about having to do the catering job in addition to the cleaning job, and he did not get a satisfactory response from them.

There was no record of any grievance raised by the claimant with Mr B with regard to hours of work or onerous responsibilities. Due to a lack of evidence on this point, the grievance was not upheld.

In respect of his engagement with Ms T, it is evident that she instructed the complainant to ensure that he kept his hours of work at 40 hours per week. The complainant was unhappy with the imposition of this limit on his working hours in circumstances where, in his mind, he was required to do two jobs. However, his grievance with regard to this matter was not upheld.

3. The complainant alleged that he was promised that he would get a job as facilities co-ordinator with the client.

This element of the complainant’s grievance was not upheld. The role of facilities co-ordinator would have been a role with the client and the respondent was not in a position to take any action to appoint the complainant to a role in a separate company.

4. The complainant was aggrieved that he was not consulted when a new contract was negotiated with the client in 2016. He felt that there should have been some discussions with him with regard to the work he was engaged in and the pressure that he was under at the time.

This element of the grievance was not upheld, as it would not be normal practice to consult with employees at the time of the renewal of a contract.

5. The complainant alleged that Ms T told him that if he had a problem with how his concerns had been resolved, he could leave.

Ms T denied making this statement and this element of the grievance was not upheld.

6. The complainant said that he was disappointed with how he had been treated by the company in the manner in which he had been over-worked for a number of years.

On this point, the operations director said that if the complainant had brought his concerns to the attention of her or Mr G previously, they would have been addressed.   As soon as Mr G and Ms T were aware that the complainant was working excess hours, the roster was reviewed and hours were allocated to other staff. Ms M found that if the complainant had raised this issue sooner, it would have been dealt with sooner and this grievance was not upheld.

7. Finally, Ms M responded to the complainant’s suggestion that he be paid a termination payment of €50,000. This request was rejected.

The Respondent’s Position that the Complainant’s Resignation was not Constructive Dismissal

The respondent did not disagree that the complainant had worked very long hours and had taken on additional responsibilities for a number of years. They disagreed with his request for “termination and compensation” as a way of resolving the problem.

As there was no evidence that the complainant raised his difficulties with his line manager before October 2016, when his solicitor sent a letter outlining his concerns, the respondent determined that they had no role in addressing how he had been treated. Also, the fact that Mr T had left the respondent to work for the client prevented them from investigating how Mr T had encouraged the complainant to “hang tough” so that the client would be impressed and so that he might get a better job. The focus for the respondent from October 2016 was to ensure that the complainant was confined to working 40 hours a week, and that he carried out the dual roles of cleaner and catering officer within this timeframe with the assistance of some of his colleagues.  

The respondent further argued that the complainant has not demonstrated that:

a. They acted in a manner which breaches a fundamental term of the contract of employment, or,

b. They acted so unreasonably so that continuation of employment was intolerable and it was reasonable for the employee to resign.

The respondent’s position is that they addressed the issues raised by the complainant in accordance with the company’s grievance procedure and found that they were without substance. Their position is, if he was not satisfied, as he clearly wasn’t, he should have referred the matter to the WRC.

Contractual Test

The respondent said that at all times, they operated within the terms of the complainant’s contract of employment.

In this case, the claimant was unhappy with his workload and the hours he was working. However, the respondent argues that the complainant agreed to do the hours he complained about and was paid for all the hours he worked and that, on this basis, there has been no breach of his contract of employment. Citing the case of Conway v Ulster Bank UD 474/1981, the respondent said that its actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the respondent no longer intended to be bound by the contract.” It is the respondent’s position that, in light of this precedent, on the contractual test, the termination of the complainant’s employment fails to be a constructive dismissal.

Reasonableness Test

With regard to the test of reasonableness, the respondent argues that there are two interwoven factors to be considered:

a) Did the employer act so unreasonably as to render the relationship intolerable?

b) Did the employee act reasonably in resigning, particularly with regard to how he exercised the internal grievance procedures?

The respondent cited the Employment Appeals Tribunal (EAT) case of McCormack v Dunnes Stores, UD 1421/ 2008 to demonstrate how these concepts are approached, where the Tribunal chairman stated:

“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 or her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.”

Kenouche v Four Star Pizza, UD 962/2008 is also cited as an example of the reasonableness test where the chairman stated:

“…the conduct referred to in the Act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee.   Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the resignation by the employee.”

As a result of the initiation of the grievance procedure, the respondent said that measures were taken to resolve the complainant’s grievances; his hours were reduced, he received an outstanding overtime payment, tasks were re-organised and arrangements were put in place to ensure increased visibility of his workload by his line manager. Having put these arrangements in place, the respondent’s position is that the complainant had no entitlement to resign and that he intended to leave regardless of the outcome of the grievance procedure.

Referring to the case of McCormack v Dunnes Stores referenced above, where the claimant looked for a shorter working week but was offered flexi-time instead, the chairman stated:

“Although the claimant has approached local management on a number of occasions to express her grievances and to attempt to get working conditions and times suitable to her domestic circumstances, the action of the claimant in resigning in February 2008 after the respondent had offered her a flexi contract with options for minimum and maximum hours cannot, in our view, be regarded as reasonable nor could it be said that the conditions and terms, even though not then specified, which would flow from such a contract, would be intolerable for the claimant.”

The respondent’s position is that the conditions that the complainant was working under could not be considered to be intolerable. He worked during the processing of his grievance, from December 8th 2016 until April 7th 2017. He also gave notice of his intention to resign, and he worked his notice period. From the company’s perspective, this demonstrates that the working environment and the conditions of employment were not so intolerable that the complainant had no option but to leave his job.

In evidence, the respondent said that they approached the client on the site where the complainant worked with a view to increasing the manpower assigned to catering and cleaning and there is now an extra person there working around 20 hours per week.

After he left, the operations manager wrote to the complainant asking him to re-consider his decision to resign, but he declined to do so.

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The issue for decision in this case, is, taking into consideration the conduct of the respondent in relation to this former employee, and considering how his grievance was addressed, was it reasonable for him, or was he entitled to terminate his employment?

It is evident that, by September 2016, following five and a half years of employment with the respondent, there was a complete loss of trust by the complainant in his employer and he felt that he had been badly let down. It could be argued that he was the author of his own misfortune because he believed his manager when he was asked to “hang tough” on the basis that this might lead to a better job.

There’s no doubt also that the earnings that accrued from working around 50 hours a week for nearly five years must have had an influence on the complainant’s decision not to do anything about the problem. While I accept his evidence that he discussed his concerns with Mr B between 2012 and 2016, it was only when he was instructed by Ms T in September 2016, that he was to confine himself to 40 hours per week, that he consulted a solicitor.

In September 2016 therefore, three issues combined to make this job particularly unpalatable for the complainant; firstly, his aspiration of a job with the client organisation had come to nothing; secondly, the end of overtime meant a reduction in earnings of around €10,000 per year and finally, he still had to “be flexible” and to continue to do the cleaning and catering job, albeit with some support from his colleagues. Based on this predicament, it is understandable that he decided to leave.   The question is, was he entitled to do so and to claim that his termination was, as defined by the 1977 Act, “because of the conduct of the employer?”

The Respondent’s Management of this Grievance

With around 7,000 employees in Ireland, it is reasonable for the respondent organisation to rely on the autonomy of site managers to handle employee matters. I accept the evidence of the complainant when he said that in 2014 and again in 2016, he asked Mr B to address the long hours problem and the way in which the work was organised. Mr B was the person with whom he had daily contact and the obvious person to deal with issues in the unit.

The respondent’s grievance procedure was presented in evidence and opens with the following statement:

“(The Respondent) takes pride in its Open Door Policy and the Company actively encourages employees to talk to their Supervisors and Managers to discuss issues that affect them and their working environment.”

The procedure goes on at section two:

“Nothing in this procedure is intended to prevent you from informally raising any matter you may wish to mention. Informal discussion can often solve problems without the need for a written record.”

However, in her letter of March 22nd, following the meeting in accordance with stage three of the procedure, the operations director stated:

“You confirmed that the site had got a lot busier and you spoke to the new Facilities Manager at the time, (Mr B) about your hours, duties and additional money. You stated that (Mr B) advised you to wait until the contract was signed in 2014, however, once the contract was signed, there was no additional budget available.   You later confirmed that you had raised a grievance with (Mr B). Having reviewed your personnel file, I see no evidence of a grievance being raised with (Mr B).”

The complainant said that he discussed his concerns with Mr B; however, the conversations were not written down and a note was not placed on his file. The operations director therefore questioned whether he had ever raised his concerns with his manager. This concern with evidence and a file note goes against the spirit and the clear objective of the grievance procedure, which, at stage one, seeks to resolve matters informally “without the need for a written record.”

The letter of March 22nd goes on to explore the reason why the complainant did not raise a formal grievance:

“When asked why you had waited until now to address these concerns you advised that you felt under pressure to do extra work as a non-national and you had been promised the role of Facilities Coordinator.

“Having taken the above points into consideration I do not believe that it would be obvious that you were under pressure, stressed or over worked with the duties you were required to complete.”

This conclusion undermines the complainant’s description of his experience, without putting forward any reason why he should not have felt under pressure or stressed.   Rather than acknowledging how he felt, his experience was simply dismissed.  

During the grievance procedure, the management appeared to detach themselves from the conduct of Mr B and his advice to the complainant to put up with the situation in the hope of a better job. In the same letter of March 22nd, Ms M stated:

As I am unable to find any documentation on your personnel file in respect of previous grievances raised and as the employees that you have listed are no longer (the respondent’s) employees my findings in this respect are inconclusive.”

While Mr B was no longer an employee of the respondent, it was not impossible for the operations director to consult him about what had occurred. He was known to the respondent and as he was employed by their client, he was easily contactable. It is difficult to believe that the operations director, or someone on her behalf, did not have a word with Mr B around this time to determine the credibility of the complainant’s statements.

Having reviewed the outcome of stage three of the grievance procedure, it appears to me that on each point, the complainant’s concerns were dismissed on technicalities.   The company’s grievance procedure states that its purpose is “to enable employees to express any problems or concerns they may have and to have them resolved quickly and satisfactorily.” The failure of the respondent to acknowledge the complainant’s concerns, even if the outcome was not to his satisfaction, indicates that there was no genuine effort to use the grievance procedure for the purpose for which it was intended.

Claiming that they had no evidence with regard to the conduct of Mr B, the respondent distanced themselves from the effect his behaviour. Their insistence on the need for written evidence that the complainant had raised his concerns before September 2016 had the effect of diluting his complaints. Finally, their dismissal of his experience of stress and pressure must have exacerbated his sense of mistrust and any confidence he could have in the capacity of the company to address or at the very least, to understand his concerns.

As a foreign national participating in the grievance procedure without representation, the complainant did not have the resources that could have helped him to achieve a better outcome. He was exhausted and emotionally drained. It is regrettable that the respondent did not take up the offer of the complainant’s solicitor to discuss his concerns. As an alternative, another employee, experienced in representing colleagues could have been drafted in as support. It is my view that, if the complainant had been represented at the grievance meetings, a different outcome may have resulted and a complaint of constructive dismissal could have been avoided.

I now wish to explore the arguments presented by the respondent, as to their view that the complainant’s complaint of constructive dismissal should not succeed.

The Contractual Test

The respondent argued that at all times, they operated in accordance with the complainant’s contract of employment. The contract was not submitted in evidence; however, it is unlikely that it contained a provision to work in excess of 48 hours per week. In this respect, it is my view that, for a number of years prior to September 2016, the respondent was in breach of the complainant’s contract of employment due to their willingness, on a regular basis, to permit him to work in excess of 48 hours. The fact that there is now an extra person working around 20 hours per week on this site is an indication that there is, and was a requirement for someone to work more than a standard 40 hour week.

In March 2015, the complainant said that he was instructed that he was not to work more than 48 hours per week. This was repeated at the meeting with the operations director on December 8th 2016. The impression here is that the complainant was in control of his working hours, when clearly, this should be the responsibility of his employer. While 48 is the legal maximum number of hours that may be worked in a week, it is far from a reasonable norm and I am concerned that, while this situation may have been acceptable to Mr B, it should have raised a query in the payroll and HR functions. The fact that no red flag was raised resulted in the complainant working excessive hours for over four years. Although he suffered from exhaustion, it was obvious that the overtime earnings were so significant that he continued to work the long hours, until his expectations were deflated in 2016, when he was not offered a job with the client.

The complainant was recruited as a janitor and his responsibilities were to clean the facility. He then accepted extra responsibilities associated with catering and the respondent allowed this to continue. If he had remained in employment, they intended him to carry out this dual role indefinitely.    

By permitting the complainant, regularly and for an ongoing period of over four years, to work in excess of 48 hours per week and by changing his role without agreement, the respondent repudiated the contract of employment. On this basis, they have failed the contractual test to which they refer in their submission.

The Test of Reasonableness

In the Kenouche v Four Star Pizza case, UD 962/2008, cited by the respondent, the issue of the reasonableness of the complainant’s decision to leave is explored:

“…the conduct referred to in the Act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee.”

To determine the reasonableness of the complainant’s actions, we have to consider his motivation at the time of leaving, which as I have set out above, is based on three facts.

1. The complainant left because he was disappointed that he didn’t get a better job that he was hoping for and he felt he had been deceived by his manager.

If the complainant had been proposed for a job, interviewed and found to be unsuccessful, this would have been disappointing, but not serious and certainly not significant. The problem with what occurred in this case is that the complainant was encouraged by his manager, over a period from 2012 until 2016, to accept a situation in which he worked excessively hard for long hours and which caused him to be stressed and exhausted. Long hours, stress and exhaustion can be a feature of many jobs, but this was after all, a cleaning job on an hourly rate of €11.25 and, in this context, the behaviour of the manager was unacceptable and unreasonable.

2.   As a result of the instruction in September 2016, from his new manager, Ms T, to revert to working 40 hours per week, the complainant was at a loss of around €10,000 per year in overtime earnings.

The complainant’s annual salary for working 40 hours per week was just under €24,000. The loss of €10,000 per year presented a considerable loss and must be viewed as a “serious or significant” factor which contributed to his decision to resign.

3.   On reverting to a 40 hour week, the complainant was required to continue to do the work associated with cleaning and catering, although there was to be a greater degree of oversight from his manager and other cleaners on the site were to help out.

It is notable that, after he left, 20 hours were added to the contract in order to complete the tasks required by the client. It is apparent therefore, that the combination of catering and cleaning was an onerous responsibility. Of itself, the instruction to “be flexible” and to carry out both jobs may not have been serious or significant, but when considered in the context of what had occurred from 2012, I can understand why the complainant found this request simply overwhelming.

Based on these facts, I have reached the conclusion that the conduct of the employer in this case was serious and significant and the complainant’s decision to resign was within the band of reasonableness in the circumstances that prevailed.

Request for a Termination Payment

I wish to address the fact that before he resigned, the complainant asked for a termination payment.   From his evidence at the hearing, the complainant wanted to move on from his employment, but in so doing, he wanted to be paid compensation. He said that when he consulted his solicitor in September 2016, he told him that he wanted to leave and be paid compensation. He repeated this in an e mail to the operations manager in January 2017 when he said, “I make it official claim for compensation and termination of contract.” Again, the minutes of the meeting at the third stage of the grievance procedure show that the complainant “stated that the relationship is broken and asked for a termination package.” Although he sought advice from a solicitor, from FLAC and from the WRC, the complainant did not set out the grounds on which he felt he was entitled to compensation. He seemed to be possessed of a misguided notion that “compensation and termination” is a regular and acceptable way to leave a job, as an alternative to simply leaving and moving on to another job.

The fact that the complainant was adamantly seeking compensation to terminate his employment indicated to his employer that he intended to leave. I have to consider if the fact that he indicated his intention to leave and that he was seeking compensation weakens his claim of unfair dismissal. Having listened to his evidence at the hearing, I think that while he had lost confidence in his employer in September 2016, he simply found that he could not walk away with nothing. From his perspective, he had put in over five years of long hours and hard work and he and his family had made sacrifices for what he hoped would be a positive outcome and a better job. The result was bitter disappointment. One way to overcome that disappointment was to try to get some compensation for his efforts. While I do not agree with this strategy, I understand his motivation and I find that it has no bearing on his claim of constructive dismissal.

The response of the operations director to the request for compensation was to the effect that “I am satisfied that you have received compensation for all hours worked, including overtime that you had scheduled to complete additional tasks.”

I have a serious concern about this statement. In the first instance, the employment relationship is based on being paid for work done, not compensated. Secondly, it is not the responsibility of the employee to schedule their hours of work or their overtime, and the suggestion here is that the complainant contrived to increase his earnings by scheduling overtime to complete additional tasks. If this occurred, it was the responsibility of the employer to manage the problem, and to ensure that the employee did not work excessively long hours, or earn an excessive amount in overtime.

Notice of Resignation

When an employee gives notice of their intention to resign and, when they work out their notice, can the situation at work be considered to be so intolerable that a claim of unfair dismissal can be justified?

In cases involving bullying, health and safety or illegality, it might be reasonable for an employee to simply walk out. In such cases, the desire is to protect oneself from physical, emotional or reputational damage. However, where this complainant is concerned, the intolerable aspect of his employment was his belief that his employer had no respect for him. To compound this predicament, his efforts, through the grievance procedure to get them to appreciate what had happened had come to nothing. In his mind, this wasn’t a sudden or recent phenomenon; the problem started in 2011 when, having been employed as a cleaner, he was asked to serve tea and coffee. There was no “tipping point” that pushed him over the edge. When he received the letter of March 22nd which found no basis for his complaints, he resigned and he worked out his notice.   Having listened to his evidence and observed his demeanour at the hearing, it seems to me that he was not prone to rash decisions or impetuousness and the manner in which he resigned and worked out his notice was consistent with his deference to the authority of his employer from the start.

Conclusion

As a cleaner with an ambition to improve his circumstances, the complainant was taken advantage of by his manager who manipulated his aspirations to get a better job. He was convinced by this person to put in an extraordinary effort to please the client and he was let down. He was naïve and he may have been foolish, but, as young man trying to establish himself in a foreign country, he was vulnerable and he perceived himself to be subject to the satisfaction of the client. At the end, he tried to extricate himself with some semblance of dignity and he consulted a solicitor for help. In response, his employer initiated the grievance procedure, but excluded his solicitor from the process. Finding that there was no substance to any of his concerns, the respondent failed even to acknowledge his disappointment or, to appreciate that for more than four years, he had worked long hours and taken on more responsibilities than he was employed to undertake. The outcome of the grievance procedure was that he was instructed to continue to do two jobs, within the confines of a 40-hour week and 40 hours’ pay.

It is my view that it was reasonable for the complainant to resign. I also have to conclude that the reason he resigned was due to the conduct of his employer, which was serious and significant to the extent that it was the cause of his resignation. I therefore find that he succeeds in his complaint of unfair dismissal.

In accordance with section 7 of the Unfair Dismissals Act 1977 – 2015, where a complaint succeeds, compensation may be awarded up to a maximum of 104 weeks’ remuneration, based on the financial loss suffered following the termination of employment.   There is an onus on a complainant to seek alternative employment and no evidence was presented that the complainant did seek alternative work. On the date of the hearing, six months had elapsed since the termination of his employment and he said that he had not found another job, but that he spent some time at home in Romania.

It is my view that it would have been possible to find another job reasonably soon after he resigned and the complainant offered no mitigation to why he should not have taken up employment within a short period.

I have decided that the respondent should pay compensation of €8,500. This is based on an estimate of what the complainant earned over three months prior to the change in his roster in 2016 and takes account of his hourly rate of €11.25 plus overtime.

Constructive dismissal, conduct of the employer