ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023230
Parties:
| Complainant | Respondent |
Anonymised Parties | Driver | Washroom Supplies Provider |
Representatives |
| John Doyle MD |
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-00029759-001 | 18/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029760-001 | 18/07/2019 |
Date of Adjudication Hearing: 26/09/2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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 made. 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.
The Complainant’s complaint is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section1 of the Unfair Dismissals Act 1997).
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the of Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that he satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for him to resign. That the employer has conducted it’s affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment (by reason of Constructive Dismissal) wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 18th of July 2019) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited Wherein the Tribunal stated:
“The Tribunal considers that the Appelant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appelant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
Background:
The Complainant has brought a complaint of having been Unfairly Dismissed by reason of a Constructive Dismissal and brings his complaint by way of Workplace Relations Complaint Form dated the 18th of July 2019. |
Summary of Complainant’s Case:
The Complainant represented himself and provided me with a statement of his position. I additionally heard his oral evidence and raised questions as appropriate. I advised the Complainant that the burden of proof rested with him to show that he had to resign in all the circumstances. |
Summary of Respondent’s Case:
The Respondent was represented by its Managing Director and its HR Manager. I was provided with a statement of their position and I was also handed some letters etc. which corroborated certain aspects of the Respondent’s position. The Respondent argued that the Complainant was not forced to resign his position by reason of any Act or omission on its part. |
Findings and Conclusions:
I have carefully considered the evidence adduced in this hearing. The Complainant worked with the Respondent company from October 2017 and was primarily involved in the delivery of washroom products and supplies to certain retail units around the country. I do not doubt that the job was very onerous, and that the complainant travelled great distances every week – his own estimate put him travelling up to circa 1,500 km per week. From the start, the Complainant worked out of the Respondent depot situate in Dublin and that there was only one other Employee engaged by the Respondent - PK – who was the Complainant’s line Manager/Supervisor. There is little doubt that the Complainant did not have a particularly good relationship with PK, and this was an ongoing issue for him. I accept that the HR and Health and Safety supports were not immediately to hand as both these departments being based either in the North of Ireland or in the UK. However, I do also note that the Complainant knew how to communicate with HR and the Health and Safety Officer – and had done so. I also accept that the Complainant had been provided with the MD’s personal mobile number and email as part of what the MD suggested was his own policy of being immediately contactable by any one of his 140 employees. The Complainant said that his workload increased dramatically when PK initially went out for a medical operation and then returned to the workplace to perform “light duties”. In his workplace relations complaint form, the Complainant cited this untenable and dangerous work overload as being the primary reason for his resignation. This change in work pattern (taking on PK’s runs as well as his own) started in December 2018 and went on until May of 2019 at which time the Complainant gave a month’s notice of his intention to leave. It is worth noting that the payslips to not demonstrate a worrisome level of overtime. There was an average of about seven hours per week. The Complainant gave the said notice to a Ms. S with whom he appeared to have a good enough relationship. He specified that the reason for his resignation was because of the “arguing”. The message was sent by text message and was immediately sent on to the MD who gave evidence at the hearing. It is not clear what the Complainant was referencing when he said he couldn’t do the arguing anymore. Was he arguing about the long hours he says he had picked up because PK was on light duties? Was he arguing about the slowness of the Company to pay overtime for the extra hours worked (clearly an issue for him)? Or had he become tired of the arguing he and PK engaged in seemingly as a matter of course? It is not clear to me which was the primary grievance. I must note that the MD who received the notification did not take the time to try and determine what had upset this Employee, even though the Employee would continue in the employment for another four weeks. As this is a constructive Dismissal, I have to be satisfied that the Complainant had no alternatives other than to tender his resignation. Normally there would be an onus on an employee to exhaust the in-house procedures provided, if there are any. The Complainant herein did not. The Complainant said to me that this was because he had never been given an employee handbook – though he had apparently asked for one (from the MD in person in the course of an operational meeting) as recently as the previous December. It has additionally been pointed out to me that the Complainant had had correspondence with the HR department in the past concerning another issue and at that time he was made aware of the option of triggering a grievance procedure and was in fact invited to do so without having to worry about so doing. At the very least I must assume that the Complainant was aware of the fact that the company had a fully operable Grievance and complaint policy. I must also therefore assume that it was open to the Complainant to raise a Grievance in relation to any one of the three issues that he spoke of in the course of his evidence – the work overload, the relationship with the supervisor and the lateness of OT payments. The Complainant did not do so. In the course of his evidence it was clear to me that the complainant had been unhappy in his employment for a considerable period and he was critical of the levels (or non-levels) of support he received. For example, when he jabbed himself with a needle, they showed little concern other than the request to fill out an accident report form. I do not accept that PK prevented the Complainant from communicating fully with the Employer. The Complainant was always able to make any issues he might have had, known to the Employer. He himself chose not to highlight issues he might have had. For example, there is no evidence to suggest that the Complainant was concerned that the perceived work overload was dangerous or that he made that fact known to his Employer. In fact, he had settled into the routine without complaint as far as the Employer was concerned. On balance, I cannot find that this was a case where the Complainant was constructively dismissed. The Employer did not act in such a way as to leave the Complainant with no other choice other than to resign. The Employer was simply unaware that the Complainant was unhappy because the Employer had not been informed in any meaningful way. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00029759-001 – The Complainant’s resignation did not amount to a Constructive Dismissal and his claim therefore fails. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00029760-001 – This Complaint is identical to the above and is withdrawn.
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Dated: 4th December, 2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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