ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010111
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaner | A Hygiene Service Provider |
Representatives | Vivian Cullen SIPTU-Trade Union |
|
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-00013164-001 | 17/08/2017 |
Date of Adjudication Hearing: 02/02/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
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 her place of employment wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 17th of August 2017) issued within six months of his dismissal, I am satisfied that I have jurisdiction to hear the within Unfair Dismissals claim.
The Complainant’s complaint is that she was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that her Employer’s conduct or behaviour was such that she had no reasonable alternative other than to tender her resignation
Background:
The Respondent company is involved in maintenance and cleaning, and in particular has operatives who attend at client sites nationwide for the purpose of performing these required services. The Complainant was engaged as a driver and had a van assigned to her in the course of her employment. |
Summary of Complainant’s Case:
The Complainant tendered her own resignation in circumstances where she says her Employer unreasonably and significantly changed the terms of her long-standing working arrangements. |
Summary of Respondent’s Case:
The Respondent made the case that where the Complainant had made a life choice decision (in terms of where she chose to live) she had created a health and safety issue and was putting the Respondent into a position where it was complicit in breaching the terms of the Organisation of Working Time Act 1997 |
Findings and Conclusions:
I have carefully considered the evidence adduced. The parties both prepared written submissions which were opened to me. I also heard from a Mr. G on behalf of the company/employer and from the Complainant herself. The Complainant worked with the Respondent company for over ten years. She was a highly valued employee as Mr. G said it was difficult to find female drivers able to call out to client sites and operate in the female only facilities. The Complainant had always had a company van assigned to her. The arrangement was that she would keep the van overnight and then drive from her home to her first job each morning. This had worked well when the Complainant was living in Dublin and had worked very well when the Complainant was working out of her home in Portarlington which was in the middle of the counties of Kildare and Laois which counties had both been assigned to her. I accept that the Complainant did not formally notify her Employer that she had made a personal decision to move to Wexford which happened in March of 2016. The Complainant continued to drive to whichever place of work she was to attend on a daily basis. The move to Wexford did not make the Complainant late or in any way less reliable. However, the diesel expenses associated with an extra 220 kilometers a day did eventually come to her Employer’s attention. The Employer was unhappy that the Complainant had (unbeknownst to them) added an extra three hours to her daily routine. As the Complainant was using the company van and driving directly to client sites from her home – she was in effect working eleven hour days which was noted by her Employer as being well in excess of the 48 hours allowed under the Organisation of Working Time Act. The Complainant did not own her own car and was not in a position to purchase one. The Complainant’s employer was not happy to allow the situation continue as it meant that they were complicit in breaching domestic legislation and the Working Time Directive as has been interpreted by the Court of Justice of the European Union in the “Tyco” case. That case found that employees who do not have a fixed place of work and who are required by their Employer to travel directly to provide a service to clients should consider that travel time as working time. The Complainant engaged her Union Representative to try and broker a workable arrangement with her Employer. Despite his best efforts these discussions gained no traction. The Employer was unable to allocate the Complainant with a post closer to her home in Wexford. The Employee’s offer to cover the cost of the extra mileage did not solve the issue. The Employer insisted that the Complainant would have to start picking up and dropping off her work van from one of the Respondent sites before starting and finishing her working day. The suggested sites were in Dublin and Naas… a long way from Wexford. The Complainant loved her job. She had a good rapport with her clients. She needed her salary and was paying into a pension which was being met by her Employer. It was with great regret that the Complainant resigned her position. The Complainant is claiming this was a Constructive Dismissal where she was forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate her employment or it was reasonable for the Employee to terminate her employment (as defined in Section1 of the Unfair Dismissals Act 1997). I have considered the circumstances which led to the decision to terminate the Contract and, on balance, I cannot find that the Employer conducted itself in such a way that the Complainant was forced to resign her position. It was the Complainant’s own personal decision to put such a great distance between herself and her area of work. The burden of proof shifts to the Complainant in Constructive Dismissal cases and I cannot find that the Complainant has lifted that burden and demonstrated to me that her Employer was unreasonable and forced her hand. |
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 that the Complainant was not Unfairly Dismissed by way of Constructive Dismissal or otherwise |
Dated: 11th May 2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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