ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00006797

Parties: 

Complaint(s):

Date of Adjudication Hearing: 16/02/2018

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance Section 8 of the Unfair Dismissals Acts, 1977 – 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a Security Guard from 1 June 2007 until 5 December 2016 when he resigned his position as a Supervisor due to the alleged unreasonable behaviour of the Respondent. The Complainant alleged he was constructively dismissed and was seeking redress of compensation. The Complainant received a gross wage of €420 per week for an average 39-hour week.

Summary of Complainant’s Case:

The Complainant maintained that from 26th September 2016 to 26th November 2016, through a series of events, the Respondent had challenged his terms and conditions of employment, and ultimately, as a consequence of being moved to a new to a new work location on 21st November 2016, he had no option but to resign his position.

The Complainant submitted that on the 29th June 2016 following a staff meeting relating to another employee he was told by a senior manager that he would be better seeking employment elsewhere as he did not seem happy with his work. The Complainant maintained a reference of him not being happy at work was again made by management prior to a meeting on 19th July 2016 where it was mentioned that if he was unhappy he should apply for a job elsewhere. The Complainant submitted that in August 2016 he was asked to fill out a form to say that he was content with his employment, however he maintained that he outlined to the Respondent that he was unhappy with the comments that had been to him in June 2016 by the manager.

Evidence presented by the Complainant indicated that he had experienced some difficulties from a work colleague and where he had been threatened by his work colleague. The Complainant maintained that he had raised these concerns with management at the time. He was unhappy with the amount of time that management had taken to deal with this issue.

The Complainant advised that subsequent to these issues, on 27th September 2016 he received a phone call from a manager who advised him that he was to be given a written warning. The Complainant submitted that a half hour later he received a call advising him that he would only receive a verbal warning, and this verbal warning was confirmed to him in a letter on 27th September 2016. However, the Complainant contended he had not been invited into any disciplinary procedures prior to the verbal warning being issued. The Complainant lodged an appeal to this decision in accordance with the Respondent’s grievance procedures. The Complainant submitted that on the 24th October 2016, when he was in attendance as a witness for a colleague in a separate disciplinary matter, he was informed that his appeal could also be dealt with at that time.

He maintained that he subsequently received a letter from the Respondent on 25th October 2016 stating that no formal warning had been given to him, and that there was nothing for him to appeal. This was of concern to the Complainant particularly as he had received a written note on 27th September 2016 advising him that he had received a verbal warning. He advised that these matters had caused him stress, he visited his GP, and he was put on medication.

The Complainant maintained that on 4th October 2016 he was notified that he was to be investigated for gross misconduct along with two other colleagues, and he was placed on suspension. He advised that the basis for this disciplinary sanction was due to a complaint from a client of the Respondent in the location the Complainant was supervising the security of the client site. Which was a shopping centre. The Complainant maintained that he had never been advised the client had complaints against him, nor was there ever an investigation into the matters referred to by the client.

The Complainant explained the outcome of the disciplinary procedures was that one employee received written warning, another employee was dismissed, however no complaints were upheld against the him. Notwithstanding the Complainant advised that on 1st November 2016 he was informed that he was to be moved to a different work location. The Complainant was unhappy with the outcome of this decision particularly as he had not been advised prior to this point that there were any concerns in relation to his performance. The Complainant submitted that in accordance with the Employee Handbook he should have been offered assistance if his performance had fallen below the required standard. He also advised that under such circumstances the Employee Handbook stated that employees would be counselled, but none of this happened. He advised that he had received no warning, yet he was being a subjected to sanction where he was to be redeployed without any counselling or advice prior to this decision. He advised that he subsequently appealed what he believed was a disciplinary sanction against him, and sought to appeal his relocation.

The Complainant submitted that the Respondent advised him he could not appeal this decision as there was no grounds for an appeal in that no disciplinary action had been taken against him, and that he had not been found guilty of wrongdoing. He was told in correspondence from the Respondent that under the grievance procedure he could only appeal the severity of a sanction, but as no disciplinary sanction had been applied he was not entitled to raise an appeal.

On the 21st November 2016 the Complainant remained dissatisfied with the outcome regarding the fact that he was being relocated and that his appeal had been turned down. He also advised that in a letter dated 21st November 2016 from the Operations Manager there was an email which referred to his relocation and where it was mentioned the Respondent was to “disguise the change”. The Complainant drew from this that the Respondent was now moving him to a new location and was attempting to disguise this sanction against him, and dress it up as something else.

The Complainant submitted that on 23rd November 2016 he received a roster for the new work location and this was provided to him without explanation. He stated that the roster referred to training hours, and only rostered him for 19 hours work which was different to his normal 33 to 44-hour week rosters. The Complainant advised the roster also rostered him up until 10pm where he was never required to work past 8 pm prior to that. In this regard the Complainant advised that following a doctor’s letter in 2005 he was not rostered for night work, and this arrangement had always been honoured up to this point in time.

As a consequence of what happened, and the lack of right for the Complainant to appeal his relocation, and because he believed he had been subject to an unfair disciplinary sanction that he was refused the right to appeal, the Complainant resigned by way of letter on 26th November 2016.

The Complainant maintained that on 1st December 2016 he had received a letter from the Respondent which advised him they were not accepting his resignation and that they had asked him to meet with them to discuss the issue. The Complainant advised that prior to this letter being sent that his locker had been broken into, his personal effects had been cleared, and he was provided with the bag containing his personal belongings. He stated this bag was provided to him in the canteen in front of others, and where the Manager who handed him the bag advised that he did not agree with what was happening. He stated that a tag on the bag was dated 30th November 2016, and that if the Respondent had been genuine about its concerns, and genuinely wanted to take him back this would not have happened. The Complainant advised that he was upset that his locker had been broken into and his personal effects removed, and accordingly he had no confidence in the Respondent when he received the Respondent’s letter on 1st December 2016 advising it was not accepting his resignation and wanted to meet with him. The Complainant maintained that he had lost all trust with the Respondent and based on his experiences to that point that he did not believe he was going to be treated fairly.

In light of what he had experienced, particularly the sequence of events from September to November 2016, the Complainant submitted that he had no option but to resign and to make a complaint of unfair dismissal.

Summary of Respondent’s Case:

The Respondent denied that it had treated the Complainant unreasonably and that the Complainant had no option but to resign. The Respondent submitted that in a case of constructive dismissal the burden of proof rests on the Complainant to show that he was constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977 2015.

The Respondent maintained that section 1(b) of the Unfair Dismissals Act states “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 the 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”.

The Respondent was not in a position to respond to the alleged comments made by a manager in June 2016 with regard to the Complainant being unhappy in work and that he should seek employment elsewhere.

The Respondent submitted that there had been on going issues in the provision of the security services and in particular they had received a complaint from a client who operated the shopping centre that the client was unhappy with the supervision provided by the Complainant. In this complaint the client had sought for the Complainant to be moved to another location. The Respondent acknowledged it had been receiving correspondence from the client over the previous 12 months and where the client appeared unhappy with the level of service.

The Respondent acknowledged that it did not share these concerns with the Complainant at the time, and in making its decision to relocate the Complainant the Respondent’s priority was to address its client’s concerns. As the client was not happy to work with the Complainant the Respondent argued it had no option but to relocate him to another site. The Respondent maintained that the site was only 1.1 km from the Complainant’s current place of work, that the hours were more favourable and would have suited the Complainant. However, it argued that the Complainant left his employment before he had properly progressed his complaints under the Respondent’s grievance procedures regarding the relocation, or before he had tried the work in the new location. The Respondent therefore argued that the Complainant had left before the Complainant had reasonably exhausted all avenues to address his concerns.

The Respondent submitted that the background issues leading up to the decision to relocate the Complainant involved an investigation in October 2016 regarding CCTV stills and a complaint from the client which alleged there was gross misconduct regarding supervising the security duties. The Respondent maintained that the investigation was conducted correctly and in accordance with the code of practice and grievance and disciplinary procedures (SI 146/2000). The Respondent submitted that following this investigation the Complainant was suspended on full pay on 4th November 2016 in order to conduct a disciplinary hearing of what had been investigated. The Complainant refused to attend the hearing and asked that it be held without him. Having considered the matters, on 10th November 2016 the Respondent decided not to sanction the Complainant through its disciplinary procedures but to relocate him to another site as the client refused to have the Complaint on their site as a result of the alleged substandard supervising skills.

Following the decision to relocate the Complainant, on 26th November 2016 the Complainant provided his resignation by way of email, and on 29th November 2016 the Respondent wrote to the Complainant refusing to accept his resignation and directed him to the Grievance Policy in accordance with the Employee Handbook. The Respondent offered to meet the Complainant to address the issues raised in the letter of resignation. The Respondent confirmed that the Complainant’s locker was cleared out and his belongings were made ready for collection so he could attend his new location.   The Respondent maintained that its client would have insisted on this as the client is the owner of the lockers, and did not want the Complainant on its site. The Respondent maintained that as the Complainant had now been relocated it was not in a position to keep his personal effects in the locker as he was no longer rostered on that site. The Respondent could not account for how the personal belongings had been provided to the Complainant in the canteen in front of others.

The Respondent submitted that it did not hold an appeal to the decision to relocate the Complainant as the Complainant did not provide new evidence regarding the incidents that led to the need to relocate the Complainant. It argued further that the Complainant was relocated as per terms in his contract of employment. It also maintained that the Complainant’s terms and conditions at the relocated site were at the same pay and hours of work. The Respondent also referred to the Complainant’s letter of 26th October 2016 which stated all and any issues that had occurred within the [named client] siteon 7th September had all been dealt with by [a named manager] and moved forward. The Respondent therefore argued that by the Complainant’s own admission the earlier matter had been resolved, and also this communication demonstrated the Complainant was aware of the policies and procedures in place to raise issues, that the issues were raised by the Complainant and dealt with, and that the issues which occurred before the disciplinary matter in October 2016 were dealt with the satisfaction of all parties.

The Respondent also submitted that in light of the difficulties that existed amongst the staff it arranged for a HR consultant to attend the site to meet with all staff to try and resolve issues to everyone’s satisfaction. It therefore argued that the suggestion that the Complainant would have been told he could resign does not seem logical. The Respondent acknowledged that a disciplinary sanction had been referred to the Complainant in September 2016, and there was a sanction issued at that time, but it was ultimately withdrawn. Furthermore, it advised that if such a comment had been made to him on 7th September 2016 he did not raise it as an issue thereafter either formally or informally until after he resigned. The Respondent also maintained that if they wished for the Complainant to leave, as he had alleged, they would have pursued the disciplinary hearing for gross misconduct. Instead they chose to maintain his employment after the investigation.

The Respondent submitted that the relocation was based on a client requirement, and where the client would not agree to the Complainant working on its site anymore. Accordingly, whilst the Respondent did not uphold gross misconduct of the Complainant, or indeed any disciplinary sanction, it had to redeploy him to another site.

The Respondent submitted it was the Complainant who refused to engage with the company from this point, refused to reconsider his resignation, refused to engage in the grievance policy, refused to meet with a manager to discuss the issues, and refused to provide any alternatives to resolve the matter regarding his relocation. On that basis it argued that the Complainant failed to exhaust the internal procedures available to him. It also argued that the Complainant had legal representation during the procedures and he did not seek to pursue mediation or an alternative process to resolve his concerns.

Having considered the Complainant’s appeal to the decision to relocate him, the Respondent maintained that no new evidence was provided by the Complainant that would have caused it to change its decision to relocate the Complainant. As such it argued that a relocation was in accordance with the Complainant’s contract of employment which stated “the location specified above is your initial place of employment only and may be subject to change according to suitability and company requirements”.

With regard to the relocation of the Complainant, the Respondent maintained that the email its operations manager had sent which referred “disguising” the move was in fact an email to another manager and this was stated because the Complainant was going to replace another security guard at the relocated site and where this member of staff had been highly regarded by its client. Therefore rather than upsetting its client it was suggested that the move was to be disguised as part of its normal operating procedures, and that the change was not something that should concern the client. The Complainant maintained that the email was not in reference to disguising an inappropriate move of the Complainant, as alleged by the Complainant.

The Respondent maintained that for the first couple of days the Complainant was rostered to the new site for training to become familiar with the site, and then he was to be rostered for his full hours each week. A follow-on roster had been prepared to cover the remainder of the week but as the Complainant had resigned prior to receiving this he would not have been aware of the Respondent’s intentions.

The Respondent also maintained that constructive dismissal cases are based on the entitlement test and the reasonableness test. The Respondent submitted under the entitlement test the Complainant must succeed in arguing that he is entitled to terminate the contract on the grounds that the Respondent has breached a fundamental condition that goes to the root of the contract. The Respondent maintained that in general this arises where the actions of the Respondent demonstrates to the Complainant that the Respondent no longer intends to be bound by one or more of the essential terms of the contract of employment. The Respondent referred to the test being applied in Western Excavating (ECC) Ltd V Sharp (1978); and was applied further in Murray V Rockabill Shellfish Ltd (2012) ELR 331. The Respondent maintained in this case there was no significant breach of the Complainant’s contract. The decision to relocate the Complainant was due to a legitimate complaint being raised by the Respondent’s client, and where the Respondent sought to resolve this matter. The Respondent submitted that the Complainant’s contract of employment stated that the Respondent reserves the right to relocate the Complainant to various sites, and that a relocation is therefore not a breach of the complaints contract of employment.

Applying the reasonableness test, the Respondent argued that the Complainant must show that its conduct was so unreasonable that it entitled the Complainant to treat the contract as being at an end. The Respondent submitted that in effect this means that, even where the actions of the Respondent may not, of themselves, amount to a fundamental breach of contract, they may still be regarded as being so unreasonable as to justify the involuntary resignation of the complaint.

The Respondent contended that it applied reasonable investigation into complaints of the client and whilst the Complainant may not be happy with the outcome this does not give rise to a justification to bring to an end his employment. The Respondent maintained that another employee whom the Complainant himself had complained of was also transferred, and was transferred as a result of an investigation into that matter. Therefore, the Respondent submitted that it behaved reasonably in dealing with the clients complaint, and the Complaint’s own concerns regarding a colleague.

The Respondent argued that the Complainant was given a new location and within three days of being relocated the Complainant resigned without giving himself an opportunity in the relocated role, or without meeting the Respondent to afford the Respondent explain in detail the basis of the relocation. The Respondent submitted that it had met the reasonableness test and accordingly the Complainant could not be deemed to have been constructively dismissed.

Findings and Conclusions:

The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal, as in this case, the bar is set just as high. Likewise, the burden of proof, which now passes to the employee, is set at a high level.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard The Supreme Court has said that: ‘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.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).

In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour. In this case the Complainant has claimed that he was constructively dismissed as a consequence of the Respondent’s actions from September 2016 to November 2016.

Having reviewed the evidence presented I am satisfied that prior to the disciplinary issues in October 2016 the Complainant had experienced difficulties but confirmed in an email to the Respondent in October that these had been resolved in September 2016. I am also satisfied that the Respondent had engaged the services of an external HR firm to work with staff to resolve matters. Therefore, what is relevant to the current Complaint is whether the Respondent’s actions created a situation where it would be reasonable for the Complainant to have no option but to leave his employment due to the actions or omissions of the Respondent.

A review of the evidence presented indicates that concerns existed with regard to the Complainant’s supervisory responsibilities, and where a client of the Respondent had been unhappy with the Complainant’s supervision of security. In October 2016 specific concerns were raised by the client and the Respondent investigated these complaints. Following its investigation, the Respondent suspended the Complainant on pay to enable it progress with disciplinary procedures. The Complainant was invited to respond to the complaint against him at a meeting on 8th November 2017, but the complainant did not attend at this hearing due to the hospitalisation of his child, and where he presented a response to the allegations in an email on 7th November 2016. The complainant was subsequently advised on 16th November 2016 that the Respondent decided not to issue a sanction and advised the Complainant that no disciplinary record was to be placed on his file. The Complainant was also advised that the Respondent decided that when he returned to work he would be relocated as a security officer at the same rate of pay. At this time the Complainant sought clarification as to why he was being relocated.

It is clear that the Complainant believed is relocation was a severe disciplinary sanction, and where he was not provided with any verbal or written warning. At this time, the Complainant had sought to appeal the relocation as he believed it was a disciplinary sanction. It is also clear from the evidence that the Respondent advised the Complainant that the company’s decision remained with regard to his relocation.

Following this decision, the Complainant issued his resignation by email advising that the Respondent acted unreasonably by changing his work location, for reducing his hours, reducing this pay a supervisor, and for not allowing him to appeal the outcome of being relocated. It is also clear that following receipt of this resignation the Respondent wrote to the complainant on 29th November 2016 advising the Complainant it did not accept his resignation and stating it would like to meet with the Complainant to discuss the matter. In this correspondence the Respondent advised the relocation was not a sanction, and where the contract of employment requires that the Complainant is flexible in his position, and that when the business requires he may be transferred to different place of work. The Complainant was also advised that he could raise his issues under the company’s grievance procedures but that he had not done so. In this correspondence the Respondent also confirmed that it had not reduced the Complainant’s weekly working hours nor reduced his pay and that he will be continued to be paid at the supervisor’s rate of pay. The Respondent invited the Complainant to meet with a manager but the Complainant did not attend this meeting.

Whilst appreciating that matters became difficult between the Complainant and the Respondent as a consequence of a disciplinary investigation, I am nonetheless satisfied that there was no disciplinary sanction upheld against the Complainant. I am further satisfied that the Respondent received representations from the client that it did not want the supervisor working on its site any more. To address this matter the Respondent had no option other than to relocate the Complainant. This relocation was relatively close to the Complainant’s former place of work, and where he was not to suffer any loss of earnings or experience reduced hours. I am also satisfied that eh evidence supports that the Complainant decided not to engage any further with the Respondent despite the respondent’s efforts in writing to the Complainant, and where the Respondent sought to meet the Complainant to explain the basis of its decision.

I acknowledge that confusion existed with regard to how the Respondent handled the Complainant’s concern, and where it viewed the Complainant’s appeal was incorrect as it had not imposed a disciplinary sanction. It did advise the complainant that he could raise a grievance in relation to his terms and conditions and where it would have addressed the Complainant’s concerns regarding his relocation. but that the Complainant decided at that point that he was frustrated with the actions of the Respondent and resigned.

Having reviewed matters I am not satisfied that the Complainant had exhausted all avenues before deciding that he had no option but to resign. It is clear from the evidence presented that there was in fact no disciplinary sanction, but there was a requirement to relocate the Complainant, and that the decision to relocate the Complainant was both legitimate as a related to client’s complaint, and also was in accordance with the Complainant’s contract of employment. I find had the Complainant attended the meeting he was invited to December 2016 all of this would have been explained to him, however he never provided the Respondent with an opportunity to do so.

I further acknowledge that the removal of the Complainant’s items from his locker may not have been handled as sensitively as it could have been. I acknowledge that this experience was difficult for the Complainant. However when considering all the factors relating to this complaint, I do not find the actions of the Respondent in moving the Complainant’s personal belongings to be so injurious to the Complainant that it would amount to either fundamental breach of the Complainant’s entitlements under his contract of employment, or would amount to the acts or omissions of the Respondent that were so unreasonable that would have entitled the Complainant to treat his contract has been at an end.

Taking all of these factors into consideration I do not find that the Complainant was constructively dismissed.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 8 of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

In order to prove constructive dismissal, the claimant must clearly show that there was no other alternative option open to him, other than leave his employment. It must be demonstrated that all reasonable alternatives have been considered. As the Complainant decided not to meet the Respondent to discuss the issue in detail as invited by the Respondent I find that all reasonable alternatives had not been exhausted before the Complainant decided to resign; and furthermore the efforts by the Respondent to encourage the Complainant to consider returning to work were not explored by the Complainant.

The case of unfair dismissal therefore is not upheld.

Dated:   31st July, 2018

Workplace Relations Commission Adjudication Officer:    Gerry Rooney

Key Words: Unfair Dismissal, Constructive Dismissal.