ADJUDICATION OFFICER
Adjudication Reference: ADJ-00012173
Parties:
| Complainant | Respondent |
Anonymised Parties | Maintenance Operative | Cleaning provider |
Complaint(s):
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-00016149-001 | 06/12/2017 |
Date of Adjudication Hearing: 02/07/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
In particular, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year. It is noted that the Complainant has given the date of his dismissal as the 29th of October 2017 and the Workplace Relations Complaint Form is dated the the 6th of December 2017. The Complainant is therefore on the face of it within time – though the Respondent challenges these facts.
The Complainant’s complaint is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender her resignation.
The Complainant is claiming this was a Constructive Dismissal where he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate her employment (as defined in Section1 of the Unfair Dismissals Act 1997).
The Complainant understood that the burden of proof shifted to the Complainant in a Constructive Dismissal case.
Background:
The Respondent is a contract cleaning company responsible for placing cleaning and maintenance personnel into a range of businesses and facilities to clean and care for these properties. The Respondent had engaged the Complainant since June 2015 and there is no question as to his ability and he was considered a good worker. |
Summary of Complainant’s Case:
The Complainant believes that a request to move from a city centre shopping facility to another shopping facility Contracted to the Respondent was a form of punishment for some perceived wrongdoing on the part of the Complainant. The Complainant was not happy to travel the distances involved. |
Summary of Respondent’s Case:
The Respondent says that the Complainant continues to be an Employee of the Company. The Complainant has been contacted on many occasions to attend various different sites where work was available to him. There have been at least two offers of full time work. The Respondent was offering work as of the date of the hearing. |
Findings and Conclusions:
I have carefully listened to the evidence presented by both sides. I fully accept that on a date unknown, but in and around October 2017, the Complainant was challenged by his immediate supervisor concerning his demeanour around members (possibly only one) of the Public as he was carrying out his duties. I do not think this involved a Disciplinary sanction or even a formal warning of any sort. It was quite simply a conversation regarding standards. However, it does appear that soon after that incident the Complainant was asked to make himself available at a second venue under the management of his Employer for the purpose of conducting the exact same type of work in an almost identical facility to the one he had been in for a considerable period. Even if the Complainant had seen this request as some sort of punishment he did not afford his Employer an oppertunity to reject this notion and instead appears to have failed to turn into work. This was in and around October of 2017. Before me, the Complainant has made the case that he was prevented from going to the second unit because of the travel distance and his fear of coming into contact with unsavoury people. I reject both these ideas and suggest the Complainant was very ill informed about the area he was being asked to work in. The Complainant said that he did not address these issues to his Employer and was in fact prevented from doing so by reason of being sick – though again his Employer had no knowledge of this. In any event, the Complainant did in fact work once again with the Employer over the Christmas period in a premise being managed by them in the City Center. The Complainant was contacted on a number of occasions and it was only when a city centre job came up over the Christmas did the Complainant make himself available for the work, albeit for a short period. Thereafter the Complainant was asked to attend for work on at least two separate occasions to two separate units but both accessible by the LUAS. The Complainant opted not to avail of this work and says he waited for them to come back to him with City Center based work. This has not happened. The Complainant had issued a workplace Relations Complaint Form stating he had been constructively Dismissed in October of 2017 although he accepts that he later worked with this Employer in December and into January of 2018. These weeks of work are recognised in the P60 which issued at the start of the year. I am advised that no P45 has ever issued. At the Hearing the Respondent confirmed that the Complainant was still on their books as an employee and they would welcome his confirmation that he would be available to take on work. This is something that the Complainant is considering. On balance I find that the Complainant has not been constructively dismissed. The nature of the work appears to be casual so that the Employee can make himself available as and when he wants to work. The Complainant had no interest in working in the suburbs and refused that work in October 2017. The Complainant’s last job was over the Christmas period and he has refused all offers of work since that time. At no time has the Complainant tendered his resignation and there is nothing to suggest that a resignation can be in some way inferred from his behaviour. There is no evidence that the employment relationship has been severed. |
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.
I find against the Complainant in his claim that he has been unfairly dismissed by reason of a constructive dismissal and he is entitled to no relief as afforded by the Unfair Dismissals Act 1977 |
Dated: 27/07/18
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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