Complainant

Respondent

Anonymised Parties

A Window Fitter

A Window Repair Company

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-00010685-001

06/04/2017

In this case the Complainant says that he was unfairly dismissed by way of Constructive dismissal, having terminated his employment in accordance with Section 1 of the Unfair Dismissals Act, 1977.

He says that he resigned his position because of the actions and behaviours of the Respondent company.

The Respondent says that the Complainant resigned his position with the Respondent Company, by giving verbal and written notice the day before he took up a role with another company and that there was no reason for him to resign.

The Complainant says, in verbal submission, at the hearing, that:

He commenced work with the Respondent in April 2014.

Initially there was a good working relationship, but that in 2015 he was put into a senior role, without this being reflected in his pay.

About a year after he commenced his employment with the Respondent, he was issued with a written warning, because the Respondent says that he did not have the required equipment and materials on the work site and subsequently left equipment on the site.

He had a subsequent conversation with the manager and the foreman about this wherein, he claimed, the foreman raised his voice in a manner that the Claimant considered to be a bullying tone. He says that there were a number of such conversations.

On the 4th September 2016 he informed the manager that he intended to seek alternative employment as “everything was going wrong for him in this employment”. During this meeting he also sought an increase in his weekly wage.

He says that his fuel and toll costs on his van were to be paid by the Respondent, but that these had fallen past due.

He says that he felt, in other conversations, that he was always doing something wrong.

At the end of October 2016, in a conversation with his manager, he advised that he would have to leave his employment, “given where he was at in the company”.

The Complainant resigned from the Respondent company on 14th November 2016 and the following day started work with another company in the area.

I asked the Complainant if there was anything that could have been said in the final communications he had with the Company that might have convinced him to remain with the company. He said that he would have remained if he was given “more money”.

He said, in summary, that “I did not do everything right. I did some things wrong. I admit this”.

He went on to say that he respected the management of the Company and did not wish to fall out with them.

In summary he says that he had to leave the employment because he was being singled out for adverse treatment.

The Respondent business was established in 2013. This is a family owned and operated business.

The Complainant was employed from the 28th April 2014.

In his short period of employment the Complainant was involved in a number of workplace incidents. These incidents had significant cost implications for the company. In one case the company had to reinstate a room in a customer’s house at a cost of €2,500. In another incident the Complainant caused €7,000 damage to the company van when he collided with a parked car.

The Respondent also says that the Complainant had a very high rate of absenteeism – 32 days absence during his period of employment and 13 days with early departure from work or late arrival at work.

In May 2016 the Complainant spoke to a member of management about his possible resignation from the company, on foot of an offer he had received from another company, which also included higher pay. He was subsequently out sick for a period. On his return he did not mention the proposed move to the other company and the Respondent says he resumed normal working relationships believing there was a change of heart on the part of the Complainant.

The foreman gave evidence that the Complainant advised him that he planned on setting up as a sole trader. The foreman reminded him of the cost implications of such a move. The foreman believed that having reflected on the advice given the Complainant changed his mind and remained with the Respondent.

On the 9th September 2015 the Complainant was called to a meeting with management about the poor state of the company van, which the Complainant had control of. The point was made that it gave a very negative image of the company to customers and potential customers. He says the Complainant responded by claiming that if he had the foreman’s working hours that things might be different. The foreman snapped back that his hours were a matter between him and the company. In this he raised his voice, as they claimed the Claimant did. The Complainant then claimed that the foreman was bullying him. The foreman left the meeting.

Subsequently the Complainant claimed, to the foreman, that he was being bullied by the senior management. The Respondent says that he felt that the Claimant was now claiming bullying in every disagreement that arose. The Respondent arranged a meeting to discuss this with the Complainant, to ensure he had no problem in the workplace.

In this meeting on 27 September 2016, the Respondent advised that he would take the foreman out of the relationship with the Complainant, because of a perceived personality clash. The Claimant and Respondent shook hands and the Respondent believed that all left the meeting “happy”.

The Claimant worked without complaint from that date until his resignation on the 14th November 2016.

The Respondent says that on that date the Complainant “resigned by telephone” in a conversation with the manager. He told the Manager the name of the company he was joining. He was not giving any notice as he was starting with the new company on the following morning. The manager asked the Complainant, for the avoidance of debate, to advise him in writing of this decision.. The Complainant wrote “I [the Worker] resign from [the Respondent company] on 14-11-‘16”.

On November 20th the Claimant sent a text to the respondent regarding fuel for the van money owed to him and stated “It was too good of a job to turn down. Nothing personal maybe now that I’m gone you might realise how cheap an extra €100 a week would have been to keep me”.

The Respondent rejects the claim of Constructive dismissal of the Complainant as per Section 1 of the Unfair Dismissals Act 1977. Constructive Dismissal being defined as “the termination 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”. There was a Grievance Procedure available to the Complainant but he did not utilise it.

In the case of Debbie Kearns v Silverfern Properties Ltd. 2013 2JIEC 0701, the EAT held that “In order to succeed in a claim for Constructive Dismissal a complainant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal”.

There is the same heavy onus on the Complainant in a Constructive Dismissal claim as there is on an employer in an Unfair Dismissal case, to detail the reasons why, in a claim for constructive dismissal that resignation was unavoidable. The Complainant must also show that the Grievance procedure, open to him, has been exhausted before contemplation of resignation. This was not used and any issues that emerged were dealt with at early face-to-face meetings.

On the basis of the above the claim fails.