Complainant

Respondent

Anonymised Parties

An Employee

A Company

Representatives

David Christie Christie & Gargan Solicitors

Loughlin Deegan ByrneWallace

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-00017944-001

14/03/2018

The complainant commenced his employment with the respondent in August, 2017. There was an issue from the start with his salary. He was offered €10 per hour. He requested €11 per hour as he had 20 years experience, and was a qualified ADR driver. He was also known to the respondent company having worked there in the past. The operations manager, who interviewed him, said he would reduce the probationary period to 3 months from 6 months, after which time he would have the same rate and bonuses etc as all the other drivers. After the 3 month period had expired, the complainant went to talk to the operations manager about the increase in salary etc. The operations manager said he would look into it. A few days later he said he would increase his rate to €10.85 per hour and that all of the perks would be applicable to him from that date forward. He also confirmed that from that point onwards the complainant would be deemed a full-time employee of the respondent. The complainant was told that the operations manager would sort out his contract however he didn't receive a copy of this contract until the 30th of June, 2017.

During the month of June, 2017 there had been many discussions with the company in relation to the working time directive. The company had made proposals to increase the driver’s wages, to make up for the lack of overtime. That proposal was agreed by the vast majority of the drivers but a number of them refuse to accept the new terms and conditions. The complainant was one of those individuals. However, the complainant was given his contract on the 30th of June 2017 and he signed it.

On the 14th of June the complainant commenced work at 6 a.m. Later that day he received a call from the transport manager asking him to do two more deliveries on top of the seven that he already had. These additional pickups placed him under pressure. When he arrived at company Y, he asked for the shutters to be opened so that he could unload the pallets from his truck. He placed all three palettes on the tail lift and when he went to lower it, it collapsed causing all 3 pallets to fall to the ground. The complainant reported the matter to his superiors, as did the operations manager at company Y. The operations manager at company Y accepted the complainant's apology but stated that he was unable to assess if any of the batteries contained in the pallet were damaged. On Friday the 16th when he was out doing deliveries he was asked to come back to the depot for a meeting with his supervisor and the finance director. When he arrived back at the depot he was met by his supervisor who asked him to come up to the meeting room for a disciplinary hearing in relation to the issue on the 14th. He was informed that he could bring someone with him to that meeting. During the meeting he was asked to ‘give an explanation’ for what happened on the 14th. He told the parties present his version of the story and accepted full responsibility for the damage done to the truck. As a gesture of goodwill to the respondent company, he said that he would relinquish all outstanding holidays which amounted to approximately 18 days and that he would forego any bonus payments due to him. He confirmed that he was happy to pay for the damage to the truck. At the end of that meeting the finance director told him that he was being charged with gross misconduct which was is sackable offence however due to his previous good record with the respondent, the finance director decided that he would only issue a final written warning. The complainant left that meeting in a state of shock. He wasn't given any prior written notice of meeting. He wasn't given any documentation or any statements that were taken by third parties in relation to the incident. Two days later he received written confirmation of the final written warning and noted that he was given a right of appeal. He did not know how to go about appealing the matter as he had not been given his contract of employment nor did he have a company handbook.

On the 29 June, 2017 the complainant received an e-mail setting out the financial penalties being apportioned to him. They were

· No holiday pay 2015/2016, €1500/€1600

· Forego his back pay from May & June 2017, €932.

. Not eligible to participate in the quarterly incentive scheme for the remainder of 2017.

The complainant then sought legal advice in relation to the issue. Upon receipt of legal advice, he decided not to sign the letter consenting to the reductions being made.

In July 2017 his solicitor made contact with the respondent stating that the meeting that was had on the 19th of June was unlawful and therefore the sanction of a final written warning should be lifted immediately.

As a result of this letter the company decided to set up a de novo appeal for August 2017. The complainant’s solicitor objected to that course of action being taken and notified the respondent of same in writing.

The complainant repeatedly asked for correspondence be sent to his solicitor and not to him directly however despite such requests the respondent continued to send documentation to him personally.

In August and September 2017 there were two incidents where other employees made references to the issue he was having with the respondent company to him. He was both surprised and disappointed with this as he felt it was a breach of trust and confidentiality. He did not raise a formal grievance about these issues.

On the 30th of September 2017 the company was organising an anniversary party. He did not receive the email invitation. He felt excluded. A few days before the event he received an email from customer service asking him if he was going to attend the event. That was the first he heard about it. He did not raise a formal grievance about this issue.  

On the 29th of November he needed one hour off to attend an appointment. This had never been an issue in the past however on this occasion he was asked to bring his truck back to the depot and leave it there while he was at his appointment. He found this a bit weird. He did not raise a formal grievance about this issue.

At that point he had lost confidence with the respondent company and he decided to start looking for alternative employment.

In February an employer approached him while he was in the yard and asked him about his quarterly bonus being stopped he told him that it had been stopped due to the instant with the tailgate of the lorry being damaged. He then told him that his issue in relation to the bonus had been brought up at this particular employees disciplinary meeting. The complainant was shocked about that. He handed in his notice in March 2017 as he said he couldn't stand working there anymore. He did not raise a formal grievance about this issue.

The complainant had already secured employment prior to handing in his notice. He commenced his new job on the 20th of March 2018. His salary with his new employer exceeds his previous salary with the respondent.

The respondent is a cargo haulage firm. The complainant was employed as driver for the respondent from 17 August 2015 (not 17 August 2017 as asserted by the complainant in his complaint form CA-16483). The complainant resigned by letter dated 8 March 2018 without having invoked any grievance procedure. By letter dated 9 March 2018 the respondent gave the complainant the opportunity to withdraw his resignation and to avail of the grievance procedure. By letter dated 12 March the complaint declined to withdraw his resignation and he confirmed his resignation.

The complainant refers in his complaint forms to an incident that happened nine months prior to his resignation. The facts of that incident are as follows:

On 14 June 2017, when making a scheduled delivery to one of the respondent’s clients, the complainant loaded:

(a)          3 pallets of batteries with an aggregate gross weight of 2,490 kgs

(b)          plus a pallet truck

(c)           plus himself

onto a lorry tail-lift that had a maximum capacity of 2,000 kgs. 2,000 kgs capacity is the maximum capacity only at the point closest to the rear of the vehicle. Capacity reduces the further out one goes on the tail-lift. The complainant had grossly overloaded the tail-lift. Because of the gross over loading, an incident occurred at the premises of one of the respondent’s client’s. All three pallets of batteries toppled from the tail-lift onto the ground below. The lorry’s tail-lift broke during the incident.

The primary issue of concern arising from this event was a very serious health and safety risk posed to the complainant and to other people arising from the complainant’s negligence. The secondary issue that arose from the fact that the tail-lift had to be replaced at a cost to the respondent of €3600 plus VAT.

The complainant’s actions led to the respondent conducting a disciplinary process. A disciplinary meeting with the complainant on 16 June 2017 was convened and conducted by Ms N and also attended by the Finance Director, to investigate the circumstances of the collapse of the tail-lift. Ms N verbally informed him that the meeting was to be a disciplinary meeting and that he could bring a representative to the meeting. Ms N offered to hold the meeting at a time convenient to the complainant and the complainant nominated a time 15 minutes later. The meeting proceeded at the time nominated by the complainant.

The complainant in his complaint forms to the WRC has misrepresented the meeting in several respects. For example, the finance director never said the words attributed to him by the complainant, namely that the company could dismiss him and “any court in the land would side with them”.

At the disciplinary meeting, the complainant volunteered that he would make a contribution to the company in respect of the damage he had caused.   The cost of repairing the tail-lift was not yet known on the date of the meeting. The complainant said that he had not taken all of his annual leave during previous years (2015 and 2016) and he would forego that leave. He also acknowledged that because of the incident he was unlikely to qualify for an incentive scheme available to the staff known as the Quarterly Incentive Scheme.

                The complainant’s repayments in respect of the damage he had done

It subsequently became clear that the cost of repairing the tail-lift would be €3,600 plus VAT. The finance director and the complainant had a further discussion on 29 June 2017 in which the complainant asked the details of what the finance director proposed in respect of the repayment. The finance director sent the complainant the following email on 29 June 2017.

“Hi Complainant,

In response to your request, the cost of replacing the taillift on NET12/142D3298 was €3600 (+ VAT). This matter was discussed at our disciplinary meeting on Friday 16/06/17 (although the full cost was unconfirmed at the time our meeting took place).

We have agreed as follows:

You will decline outstanding holidays relating to the 2015 and 2016 (Value €1500/€1600)

You will forego back money   relating to May and June 2017: Value €932

You agree that you will not be eligible to participate in the Quarterly Incentive Scheme for the remainder of 2017

Subject to satisfactory performance for the remainder of this year, the Company will look favourably on reinstating the Quarterly Incentive Scheme for you in 2018.

Please confirm your agreement to the above.”

The finance director's proposal was generous to the complainant. It gave the complainant credit for annual leave that he had not taken in 2015 and 2016. The company did not have to do that. The complainant had already been repeatedly warned during those years by his manager, that if he did not use his annual leave he would lose it. In June 2017 the finance director was not obliged to accept that the company had any outstanding liability in respect of 2015 or 2016 but he allowed the complainant to be credited with the cash value of that untaken leave for the purposes of writing down the amount that he would have to repay the company for his negligence.

The complainant did not reply to the finance director's email. Over the following 6.5 months the respondent implemented the terms of the email.

The following email of 24 January 2018 from the finance director to the complainant sets out the means by which the complainant repaid the respondent for the damage he had done.

“Hi Complainant,

I refer to my email of 29/06/17 (below) and can confirm that the cost to the Company of the taillift damage (€3600) has now been cleared, as follows:

Holidays declined 2015                                            601

Holidays declined 2016                                             922

Back pay foregone                                                      932

Quarter 2 2017 incentive not awarded                 287

Quarter 3 2017 incentive not awarded                    287

Quarter 4 2017 incentive not awarded                      570

Total €                                                                      3603

Disciplinary outcome and appeal

In addition to making provision for repayment of the cost of repairing the damage that the complainant had done, the respondent also took disciplinary action arising from the complainant’s misconduct. Ms N imposed a final written warning on 16 June 2017. The complainant appealed that warning he had received.

The company’s managing director, conducted a full de novo appeal of the matter. The appeal process was a lengthy one in part because the managing director engaged in extensive correspondence with the complainant’s solicitors during the process. During that process all relevant matters were extensively canvassed and considered by the managing director. We refer you to the extensive documentation considered during that process that is attached to this submission.

The outcome of the appeal was that the final written warning that had been imposed on the complainant was confirmed in a letter dated 15 September 2017. The warning was back-dated to 16 June 2017. This was the final outcome of the disciplinary process. This outcome occurred almost six months prior to the resignation of the complainant. The respondent respectfully submits that a warning issued nine months, and confirmed on appeal six months, prior to the complainant’s resignation cannot form the basis for any claim for constructive dismissal.

The complainant’s case rests on the fact that he was subject to disciplinary sanction for his wrongdoing, namely his negligence in overloading the tail-lift; causing damage to the tail-lift and risk to himself and other people. The respondent conducted a detailed process arising from that incident. The conclusion of that process was a finding on appeal, by the company's managing director, that the appropriate disciplinary sanction was a final written warning. That final written warning was confirmed by letter dated 15 September 2017. Its effect was back-darted to the date originally imposed, 16 June 2017.   That final written warning would have expired on 15 June 2018 if the complainant had not resigned his employment three months before that date.

Almost six months after the conclusion of the appeal, in March 2018, the complainant resigned. He had not invoked the company’s grievance procedure before resigning. The respondent wrote to the complainant and gave him the opportunity to withdraw his resignation and instead invoke the grievance procedure. He refused to do so and confirmed his resignation.

The complainant was not dismissed, whether constructively or at all. He has no valid claim against the respondent under the Act of 1977.

The failure of the complainant to invoke the respondent’s grievance procedure – despite having been given the opportunity to withdraw his resignation and invoke that grievance procedure – debars the complainant from successfully claiming that he has been constructively dismissed.

Though having regard to the foregoing, it is not necessary for us to do so, we point out for completeness that the complainant obtained alternative employment promptly after he resigned his employment with the respondent.   The complainant has no loss in this case.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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”

7.—(1)

“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.”

The burden of proof, which is a very high one, lies on the complainant. He must show that his resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to him unless he can show that said remedies are unfair”.

I am satisfied that the complainant in this case failed to meet his legal obligations to exhaust the internal grievance prior to initiating his claim with the WRC. The complainant outlined several grievances he had with the respondent, its servants or agents during the course of the hearing. They were as follows:

-          Being excluded from an anniversary invite list.

-          Being asked to return his truck to the deport prior to leaving for an appointment.

-          Three members of staff having knowledge of his issues with the respondent.

These issues are the foundations upon which the complainant’s decision to terminate his employment were based. He failed to bring any of those issues to the respondent’s attention via the grievance procedure. Furthermore, he failed to demonstrate that the internal remedies available to him were unfair or to give any explanation as to why he did not invoke the grievance procedure. In doing so the complainant denied the respondent the opportunity to remedy his issues. He therefore cannot now seek redress from the respondent.

In all of the circumstances I find that the complainant’s claim for constructive dismissal fails.

The complaint fails.

Constructive dismissal. Obligation to exhaust internal remedies.