Complainant

Respondent

Anonymised Parties

A Storeman/General Operative

A Building Supplies & Pre-Cast Concrete Company.

Representatives

Jill Griffin, Solicitor of Farrell McElwee Solicitors

Rory Kennedy BL instructed by Michael O'Flaherty, Solicitor of Crean O'Flaherty Solicitors

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-00022187-001

26/09/2018

The case concerns an alleged Constructive Dismissal of a Storeman/General Operative by a Building Supplies Pre-Cast Concrete company.

The Complainant made a Written submission and supported this with a verbal presentation.

He was employed from June 2007 without incident until September 2017 when the behaviour of the Respondent Managing Director Mr. XA became aggressive and threatening. Much bad language was used by Mr. XA including the often-repeated remark “if you are not XXXX happy then XXXXX up the lane”. The Complainant understood this as an invitation to resign. On the 12th September 2018 an employee, Mr. XJ, came to the store and asked for some engineering items -drill bits. These had to be ordered and Mr. XJ came back the following Friday to collect same. On this Friday, the 14th September 2018, an issue arose over a Drill that was required to use the drill bits. The Complainant told Mr. XJ that he would have to get it from another employee. The MD Mr.XA then got involved and attempted to phone the Complainant. The Complainant did not take this call as he expected that, in keeping with experience to date, strong language would be used and the invitation to “XX up the lane” would again be made. At this stage the Complainant had had enough, went to his car and left the premises. He was certified for stress and anxiety by this GP immediately following this.

The Complainant had not made a formal Grievance complaint while in employment and the Respondent did not have any such procedures. Any informal complaints, of which he had made a few, regarding the behaviour of the MD, Mr. XA, were greeted with the “XXX off up the lane” response.

The Complainant felt that the Respondent had made his life miserable and had engaged in behaviours that were completely Unreasonable, citing through his legal representative the landmark case of Western Excavating (ECC) Ltd. v Sharpe [1978] IRLR27 with the Contract and Reasonableness tests.

The behaviour of the Respondent was in clear breach of all contractual obligations regarding Trust & Fair Dealings and the behaviour was completely Unreasonable. Both factors left the Complainant with no option but to resign and pursue a well-founded Constructive Dismissal claim.

The Respondent made a written submission supported by an oral prestation. The Respondent pointed to the considerable vagueness in the Complainant’s case and the absence of much basic factual materials. The evidence given by the Md, Mr.   strongly refuted any allegations of unreasonable behaviour. Strong language was indeed used but a Pre-Cast Concrete plant is a working environment where such language is quite normal. The aggressive behaviour and general negative attitude of the Complainant towards non-Irish nationals, both at work and in the wider Community, was well know.

On the morning of the 14th September 2018 the Complainants rough treatment of Mr. XJ over the drill bits and the location of the required drill was symptomatic of this. The Complainant had resigned in a fit of temper and stormed off the job on Friday morning. Colleagues had noted that the Complainant had been in a particularly foul mood that morning.

The Complainant had been very quick that morning (14th September 2018) to request his employment details and his exit papers. He had asked for his P45 the following Monday.

It was pointed out that the Complainant was very shortly afterwards engaged by another employer, at a higher rate of pay, much closer to his home address.

The Respondent Legal Representative pointed to a quite extensive body of case law regarding Constructive dismissal and in particular the Burden of Proof arguments that rest with a Complainant. The Complainant in this case had completely failed to substantiate his case on any good legal foundations.

The Complainant had never made any formal Grievance complaints even though he had signed a statement of the Terms of Employment in February 2016 -copy produced in evidence. This was further evidence that the Complainant had resigned in a fit of temper or for other reasons and had not given the Respondent any opportunity, as required by good legal precedent, to address his alleged grievances.

The claim for Constructive Dismissal was without any proper basis and had to be dismissed.

3:1       The Relevant Law.

The Unfair Dismissals Act,1977 is the principal piece of legislation and is supported by SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ -00002881 set out a comprehensive review which is worth quoting.

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides: “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,…” As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “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 other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

However, all cases rest on their own facts/evidence and I will consider these next.

3:2         Consideration of the principal Evidence presented.

Much of the evidence in this case rested with the oral testimonies of key witnesses.

The first main Respondent witness was the MD of the Respondent, Mr. XA. He gave evidence that, while admitting that he was a man who used the daily language of the Industry he had never been unreasonable or offensive to the Complainant. The Complainant had always been a valued worker since 2007 and he had never any issues with his performance or technical skills. However, he had been concerned for some time with the negative attitudes displayed by the Complainant toward fellow non-Irish workers and was fearful of legal claims against the Respondent by some of these workers in the light of the actions, verbal or otherwise of the Complainant. The workforce had a substantial non-Irish element.

Regarding the incident of the 14th September and the drill bits he was concerned that the Complainant had been unnecessarily aggressive toward Mr. XJ, a foreign worker and wanted to sort out the matters. It was for this reason that he had attempted to telephone the Complainant immediately on receiving Mr. XJ’s report of events earlier that morning.

On consideration I found the evidence of the witness reasonable and of some probative value.

The evidence of Mr. XJ, the non-Irish National involved on the 14th September, was equally valuable. Mr. XJ was no longer an employee of the Respondent, having secured a promotional position in a much larger Company, in the same sector. His evidence was clear and concise.

It was clear, from his evidence, that the Complainant had a history of a lack of basic civility towards Non-Irish employees and that the incident of the 14th September was one of a series of similar incidents. It was his view that the Complainant, while a valued work colleague and indeed friend for some years, had overstepped the mark that morning and this had lead the witness to seek the assistance of the MD. It was acknowledged by the witness that the views of the Complainant towards non-Irish employees left a lot to be desired.

Another employee, the son of the MD, Mr. XC, gave evidence of driving into the Yard that morning and seeing Complainant in a complete rage. They had a brief conversation and it was clear that the Complainant was in a fit of temper. He had aggressively told this witness that “He, the Complainant, was out of this XXX kip” and had been verbally abusive toward Mr. XA.

All these witnesses were open to cross examination by the Complainant’s Legal Representative.

The oral evidence of the Complainant was basically that he had been subject to a series of verbal attacks and abuse from Mr. XA since the previous September 2017. The Respondent MD had often told him to “XX off up the lane”, all minor issues /glitches in the operation of the Yard (such as proper Safety Certs) seemed to be always and most unfairly laid at his door. There were witnesses to conversations in this regard where he had been wrongly accused. By September the 14th he had come to the point of not being able to “take anymore”.

The intervention of the MD Mr. XA on the morning of the 14th September had been the final straw. The Complainant was not going to sit back and be abused in the manner that was typical of the MD, Mr.XA. This was why he had not answered the phone call.

The Complainant was cross examined by the Legal Representative of the Respondent. In his replies the Complainant was, in my view, a bit evasive on some details and in his answers regarding his approach to foreign workers. It was also unclear as to when he had been offered the position in another Company closer to home. This Company would be regarded as being of a higher status than the Respondent business.

As regards why he had not, in responds to Adjudicator questions, made a Formal Grievance complaint even from a position of Sick leave instead of a Resignation he was vague.

3:3         Conclusions

From the evidence given, both Oral and Written, I came to the view that for reasons that were not completely clear the relationship between the Complainant and the Respondent MD, Mr. XA, had become testy since late 2017. The Respondent MD had testified that the Complainant was always a good worker who had taken on extra responsibilities. He, the MD, could offer no explanations for the situation since September 2017.

However, from the evidence and applying the Reasonableness Test I could not see any actions by the Respondent that were completely legally unreasonable in the Constructive Dismissal sense. Strong language had been exchanged with a liberal use of the “F word” but in this industry this is not uncommon. The Complainant occupied a responsible position with duties well beyond what a normal storeman would usually occupy. There was no evidence that the Respondent had any desire to dismiss him. On the Contract test I could find nothing to sustain an immediate Resignation.

It was clear that the Complainant despite his denials was aware of the Grievance procedures. His arguments that he did not use them because the Respondent would have simply told him to “XX off up the lane” was not valid. Not using or even making a valid attempt to use an employment procedure because you feel the outcome is predetermined is not a very wise policy particularly if you are contemplating a Constructive Resignation.

The Complainant’s explanation regarding his securing, almost immediately, another better paid more prestigious job closer to home was open to question I felt.

On balance and having considered all the evidence I had to conclude that the Complainant had a fit of temper on the morning of the 14th and had resigned. His immediate request for his paper work indicated that the decision, while hasty, had been thought about. It showed no desire to return to work for the Respondent. The actions regarding declining the MD’s phone call were also indicative of this view.

In summary the actions on the morning of the 14th September were, I felt, the spark for an action, a resignation, that was already well contemplated.

Accordingly, and having looked at the Two Constructive Dismissal tests, I cannot find that the Complaint has satisfied the legal requirements to sustain a claim for Constructive Dismissal.

The claim is dismissed.

Act

Complaint/Dispute Reference No.

Summary decision /Please r3fer to Section 3 above for reasoning.

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

CA-00022187-001

Claim for constructive Dismissal is not well founded and is dismissed.