Complainant

Respondent

Anonymised Parties

A Security Guard

A Security Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011832-001

12/06/2017

The Complainant is a Hungarian national who worked as a Security Officer with the respondent from 17 December2015 to 22 May 2017.He worked an average of a 20-hour week for a gross pay of 200.00 euro. He presented at hearing with the benefit of a Hungarian Interpreter. The respondent operates a small security business of 5 employees, two of whom being him and his wife. The respondent denies the claim. Both parties made written and oral submissions.

Counsel for the complainant gave an outline of the case. The Complainant commenced work in December 2015. He informed the respondent that he suffered from Insulin Dependent Diabetes and he managed his condition without impacting on his job. He needed to have an operation in February 2017 and was absent from work until he was deemed fully fit on 8 May, 2017. He was rostered for 13hrs the first week and 7.5 hours during the second week.

The Respondent was unable to provide him with his 20 working hours on his return. He decided that he would have to look for another job. The Complainant was aware that he had been replaced while he was on sick leave.

The Complainant had an unsatisfactory meeting with the owner of the business, Mr O on 22 May, during which he was met with certain allegations regarding his Diabetes and informed that he could not return to work. He returned his uniforms and left the workplace.

Evidence of the Complainant:

The Complainant recalled the background to starting his job in 2015. Mr O was looking for a “social welfare man” to give 20 hours’ work. At that time, he didn’t fit the category but offered to take the job. He worked consistently more than 20 hours per week.

Mr O hired someone else during his sick leave and he received reduced hours on his return. He used to work Saturdays as the longest shift but did not receive Saturdays on his return. He presumed that he had been overlooked for the Saturdays.

On the 22 May, 2017, the complainant submitted that he was rostered from 3pm, but went in earlier, he wanted to ask for his hours back. He went to the control room and met with Mr O, who informed him that he had no further hours for him as he had been out sick for 3 months. The Complainant stated that this was not his fault, to which Mr O replied that it wasn’t his fault either. He was accused of not disclosing his Diabetes. He was informed that there was a temporary shortage of work.

The Complainant submitted he reminded Mr O that he had informed him of his Diabetes at interview, but Mr O seemed aggrieved that he hadn’t been told earlier and specifically during a visit to his home before the interview. He had received Illness benefit during his sick leave and had not received sick pay from the respondent.

The Complainant confirmed that he sent a text in resignation. The Complainant contended that Mr O had lied to him regarding the 20 hours working week as he repeated that he was Diabetic and sick on 3 occasions during the discussion. He was informed of other staff’s personal conditions. He felt humiliated and told Mr O that he never wanted to work for him. He put down his uniform and put on his jacket. He asked for a P60 and Mr O told him that it was P45 and not P60. The Complainant submitted that he asked for the document the following Wednesday. Mr O asked him “So you want to go” to which he replied, “yes”.

He submitted that he waited three months for a job. He was traumatised after this and felt useless. He submitted that he was 54 years old and has never been so humiliated in his native country or in Ireland. He contended that Mr believed that he was superior to him. The Complainant stated that he was not a slave but a free man.

He notes that Mr O called him on two occasions after the discussion, but he did not pick up. He placed the matter in the hands of his Solicitor, letters were exchanged but nothing changed. He confirmed that he had not raised a grievance. He expected Mt O to reach out to him in the 2-3 weeks afterwards and thought he could wait. He wasn’t feeling well during this period and his blood pressure was raised.

The Complainant outlined that there were two full time workers and the remainder were part time.

The complainant outlined that he was devastated for months and didn’t want to see Mr O. He felt a bad energy. He got new work and is happy in his new job.

During Cross Examination:

The Complainant confirmed that he had a variable hour’s contract, but he always got a minimum of 20 hours. He confirmed that his Diabetic condition was accommodated. He also confirmed that the main form of communication was by text. He gave 5-day notice of his intention to return to work. He disputed that Mr O was either a friend or someone he socialised with “He was just my employer”

IN addressing the 22 May discussions, he stated that he just wanted to know when he was returning to 20 hours. Mr O did not say that he would try and get him back on the hours. He denied saying that he did not want to work, he put his badge in the pocket of the uniform and said “good luck “

The Complainant did not seem to be able to answer why he didn’t raise the issue during a free day? He confirmed that it was always his intention to place the matter before the WRC and added that he wasn’t happy working with the Respondent.

The Complainant did not provide an answer when asked about the grievance procedure and instead communicated his personal dislike of Mr O.

The Complainant confirmed that he did not make a claim for social welfare as he didn’t want to be known as lazy.

In response to questions from the Adjudicator, the complainant confirmed that Mr O prepared rosters for 5 employees and these were communicated one week in advance by text .During the week of May 22, he was rostered for an 8 hour week .He confirmed that the 22 May meeting lasted 10 minutes and he neither offered nor was asked for notice in the context of his resignation .He also confirmed that he had not considered asking for some support from a work colleague to help him to outline his points of dissatisfaction .

The Complainant submitted that he had actively searched for work post his resignation and has sustained a loss of earnings of 3,000 euro.

Evidence of Ms C (Complainants Wife)

Ms C recalled 22 May 2017 when she received a phone call from her husband stating that he was going home from work. His voice was shaking, he was upset and almost crying. He arrived home and almost collapsed. He told his wife that Mr had “forced him to go “and that made ill and depressed. MS C stated that the complainant couldn’t walk and she administered First aid by placing him on bed rest and administering cold water.

In response to cross examination, Ms C confirmed that there were no Medical reports or Medical Assistance governing this episode.

In concluding , Counsel for the complainant referred to case law from EAT on Notice in Stamp and Mc Grath 1243/83 and Reduction in hours in Frane and Bellman UD 1449/2003

The Respondent operates a Security and Investigations Company and wholly refutes the claim for Unfair Dismissal and submits that the claim is both frivolous and vexatious.

It was common case that the complainant commenced work as a Security Guard in December 2015.The respondent employed five employees inclusive of he and his wife. He recalled that the complainant has come to his house to apply for the job. He explained that he had Diabetes and administered Insulin at 2 pm daily.

The Complainant normally worked Monday, Tuesday, Wednesday and Saturday which on average amounted to 20 hours per week.

Early in 2017, the business was down two employees, one of whom was the complainant due to sick leave. Mr O followed up with the complainant during his sick leave. He also employed one weekend worker for Saturdays and Sundays.

The Complainant returned to work on the 3 May 2017 following 5 days’ notice. He had appointments to attend on 8 May. Mr O stated that he had given a personal commitment to increase the complainant’s hours’ post May.

On 22 May, the complainant was rostered for a 2pm to 7.30 pm shift and he came to work some 10 -15 minutes before hand to speak to Mr O. The Complainant asked for a 20-hour week and Mr O was unable to facilitate the request” now “but would be increasing the hours in the future. The Complainant stated that he had another job and wanted his P45 by Wednesday.

Mr O confirmed that the Diabetic condition had not affected the complainant’s performance. He confirmed that he called in a replacement to cover the complainant’s sudden departure. He contended that he had not been given an opportunity to resolve the complainant’s difficulties. He had not responded to the Complainants follow up texted and he regretted that he had not tried to call him afterwards.

During cross examination, Mr O confirmed that he had hired an extra person in April on weekends only for 6 months’ duration. The Complainant was the third employee who possessed a disability and he denied mentioning the complainants Diabetes on that day.

Mr O contacted his Solicitor  for advice post resignation. The Department of Social Protection had not contacted him regarding the Complainants Job Seekers benefit.

The Respondents Representative outlined that the Complainant had worked a variable working week and this fulfilled the Respondents undertaking to him. This was a small company and a duty of care arose to two employees and this came into conflict with the middle path pursued by the owner. The Respondent submitted a record of the hours worked by the complainant.

By May 22, three rosters had been shared with the respondent and there was clear evidence that the 20 hours would be resumed .He outlined that there was provision for conflict resolution and these had been ignored by the complainant and thus internal procedures had not been exhausted .The Complainant expressed his dissatisfaction and just left .The Respondent had sought to reach out to him after this by way of 4 targeted letters suggesting that he embrace the company procedures on conflict resolution . He was also offered an opportunity to retract his resignation to secure this pathway. The letters went unanswered.

The Respondent outlined that the contract of employment was variable and no fundamental breach had occurred. The variance in allocation of hours did not constitute grounds for a constructive Dismissal.

Section 8(1B) 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.

Constructive Dismissal is not specifically mentioned in the Unfair Dismissals legislation. The definition relied on can, however, be found in Section 1 of the Act:

1 (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer

I must, therefore consider whether because of the respondents conduct; the complainant was entitled to terminate his contract or whether it was reasonable for him to do so?

In considering the position outlined by the Complainant and his representatives, I note that the complainant had managed his Diabetic condition at work prior to his sick leave of early 2017. I can appreciate that the Complainant had a strong desire to return to his baseline of 20 hours per week post sick leave. A careful perusal of the Respondents submission on hours worked by the complainant indicated that he had in fact worked variable hours as outlined in his contract of employment. There were clear peaks and troughs. I accept that the complainant’s hours were reduced on his return to work in week commencing 8 May 2017. I appreciate that he had been in receipt of Illness Benefit for some 10 weeks and I can understand his quest for full hours. I appreciate that he was aggrieved by this reduction without a defined plan to re-instate the hours. However, there is considerable conflict between the parties on what happened during the May 22 conversation which led to the complainant’s impromptu resignation.

In considering the position as outlined by the Respondent, I noted that the respondent had not taken issue with the complainant’s diabetes during his employment. I was pleased to see that the respondent had been in contact with the complainant throughout his sick leave. I note that the 5-day notice of return to work may have proved challenging for the respondent as rosters are preplanned and in this case, were populated by other staff. I was struck that the Respondent did not appear to give due regard to the contractual term on “Temporary Shortage of Work”

“If there is a temporary shortage of work for any reason, we will try to maintain your continuity of employment even if this necessitates temporarily placing you on short time, a reduced working week or layoff”

The Respondent submitted that the complainant had requested time off for medical appointments which was disputed in part by the complainant. Nonetheless, the complainant was not placed on short time or temporary lay off and this goes to the root of the case. The Respondent by their own admission tried to keep two employees satisfied in working hours and this objective, while laudable proved impossible.

However, the case turns on the events of May 22 and two very different accounts of respective recall. The Complainant cited his medical condition as the root cause of the elusive 20 hours and the Respondent cited business exigencies and juggling commitments given to all staff. I have considered both recollections and the evidence adduced by both parties. I did not have the benefit of minutes or records from this day. However, I find that I must resolve the conflict in evidence in favor of the respondent.

The Respondent received verbal and written notification of the complainant’s resignation on May 22 and within 24 hours, he offered the complainant an opportunity to reconsider complete with provision of the grievance procedure. There was no mention of the core issue of 20 hours. Further correspondence issued between the parties via the complainants Solicitor but the Grievance procedure was never activated nor was the resignation rescinded. There were multiple opportunities afforded to the complainant to explore a resolution to his cause for concern i.e. the return to 20 hours. He chose not to do this stating that he was unwell but did not provide any evidence of this contention.

The test for constrictive Dismissal places a very high bar on the complainant and this case is no different. The burden of proof rests on him. In Relph V HSE [2016]27ELR 268, the EAT determined that a case for constructive dismissal could not succeed when the complainant raised issues but did not specify a chosen course of action.

In this case, the complainant submitted that he had been prevented from accessing his 20 hours of work, this was denied by the complainant. Instead the Respondent outlined that he was working towards it. I was dissatisfied by the complainant’s lack of adherence to the company’s procedures both during the two-week period following his return to work and in the aftermath of the contentious 22 May meeting. I felt he was obliged to at least try to resolve the difficulties short of a “walk out”. He had possession of three rosters prior to May 22 to address the shortfall in a structured and procedural framework.

I probed this further and confirmed that while the complainant was clear that he had received Illness Benefit during his sick leave, a period of 10 weeks, he did not make a claim for job seekers benefit in the wake of his unemployment. In answering this question, he attributed this non-application to not wanting to be known as lazy. I found this statement to be lacking in credibility considering the clear double benefit to job seekers benefit in the face of unemployment, a subsistence payment and social welfare credit. It made no logical sense not to apply. I was struck that the complainant submitted he had commenced new work on September 8, 2017.This left a period of 14 weeks where he appears not to have been paid. I requested but did not receive a table of loss and mitigation to support the claim. The complainant submitted that he lost 3,000 euro through constructive dismissal but did not qualify this submission.

I returned to the Respondents recall of the complainant’s statement on departure, he asked for a P60/P45 as he had another job, I found this a more credible version of events.

I have found that the complainant did not address his grievance in a measured way. I have also found that the Respondent did not activate the structures around short time/lay off to support a transitionary approach to full hours. However, vital discussions on resolution between the parties never evolved and the complainant simply walked out. The Respondent made tangible efforts to seek his reengagement but this went unheeded in favour of the WRC process.

It remains for me to determine the outcome of this case:

In Brady V Newman UD 330/1979, the EAT held that

“….an employer is entitled to expect his employee to behave in a manner which would preserve his employers reasonable trust and confidence in him, so also must the employer behave …”

I have found that the complainant acted precipitously by walking out of his employment leaving a vast array of procedures to address conflict resolution intact and unused. He acted to his detriment. I accept that there was a disagreement between the parties, but this was capable of resolution by reasonable engagement. I have found that the respondent offered such an opportunity repeatedly after the Meeting of May 22 and his efforts were rejected. I find that the complainant was unreasonable in the face of the four letters issued to him.

I have not established conduct by the employer which justified the complainant’s resignation on a substantive or procedural basis. I found the complainant acted unreasonably and may have been motivated by having a new job to go to. I find that the claim is not well founded.

Decision:

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

I have found that the claim for Constructive Dismissal cannot succeed in this case.

Constructive Dismissal