Complainant

Respondent

Anonymised Parties

A Steel Erector

An Engineering Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021119-001

13/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00021119-006

13/08/2018

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

CA-00021119-007

13/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021119-008

13/08/2018

The issues in contention concern an alleged Constructive Dismissal of a Steel Erector by an Engineering Company with related Wages, Hours of Work and proper Employment Notification complaints.

                Act

Complaint/Dispute Reference No.

Summary Complaint

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021119-001

No Statement in writing or Contract of Employment was furnished by the Respondent Employer.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00021119-006

No proper notification of work starting and finishing times.

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

CA-00021119-007

The conduct of the Respondent employer was such as to leave the Complainant with no option but to resign. The Complainant was effectively socially and professionally excluded from his colleagues due to Respondent ill will towards him as a result of his taking a Personal injury Action against the Respondent. He was excluded from travelling in Company Transport and was informed by his co-workers that his PI Action was putting the entire Company in serious jeopardy.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021119-008

The Complainant was not paid for working weekends.

                Act

Complaint/Dispute Reference No.

Respondent Position.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021119-001

Contract exhibited in evidence. Claim completely denied.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00021119-006

Completely denied. In addition, often necessary to have fixed times of work start/finish to comply with Planning restrictions in Dublin urban areas.

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

CA-00021119-007

Burden of Proof in a Constructive Dismissal case is on the Complainant.

The claim completely fails to meet this burden of proof. The Social/Work Exclusion is a non-sense as the Complainant was on a job in Dublin with one colleague for the period of his return from Sick Leave to his resignation. He travelled in a Company Van. The Complainant made no complaints to his employer during this period and resigned to take `up immediate employment with a Competitor. The Claim has absolutely no substance.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021119-008

This claim was absolutely denied. The Respondent was the subject of a NERA Investigation instigated by the Complainant and no significant irregularities were found in any aspects of the payment systems. To suggest Non-payment for Weekends flies in the face of all Industry Practice particularly for employees of this skill set and availability.

As the main element of this case is the Constructive Dismissal claim (CA -00021119-007) I will begin with a consideration of this complaint. Almost all of the evidence in this case was by way of oral submissions at the Hearing.

It was clear that the relevant period for the claim was the time from the return of the Complainant from Sick Leave (arising from an Occupational injury /RTA earlier in the year) on the 5th March to the ending of the employment on the 23rd of May 2018.

3:1       The Relevant Law.

The unfair Dismissals Act, 1977, SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures together with the overall requirements of Natural justice as exemplified in numerous legal Precedents and Authorities. These are well summarised in Redmond on Dismissal Law, Chapter 19 -Constructive Dismissal, Third edition by Desmond Ryan - Bloomsbury Professional 2017

It is accepted law that a claim for Constructive Dismissal is required to addresses two legal Tests namely (1) Fundamental and completely unacceptable Beach of the Employment Contract by the Parties /principally the Employer and (2) Employer Behaviour so unreasonable and egregious that a Resignation is the only option left to the Employee.

In addition, the requirement of Natural Justice as set out in SI 146 of 2000 have also to be satisfied. In particular the full use of available employment procedures by the resigning employee is a critical issue save in the most exceptional circumstances.

Addressing the two legal tests first

3:1:1         Fundamental Breach of Employment Contract by the Employer.

I found it hard to see where a Fundamental breach of the Contract of Employment by the Respondent arose in this case. The Complainant was paid, work was provided and there did not appear to be any complaints regarding these aspects. During the course of his employment the Complainant had never raised any employment related complaints or grievances.

It was clear that the Complainant had an issue with the non-payment of sick pay during his absence but non-payment of Sick Pay was a well know policy of the Company and it could not have been seen as unnecessarily harsh or unfair on the Complainant – Personal injury notwithstanding.

Issues with the availability of Company transport for employee collection in the morning was a business issue of managing Transport costs. Alleged changes in van collections and geographic pick up locations was an issue that had irritated the Complainant but again was not a fundamental breach of contract for the employee such as to warrant a resignation.

All things considered I could not see any fundamental breach of the employment contract such as to justify a Constructive Dismissal on the Contract grounds.

3:1:2         Unreasonable or Egregious Behaviour by the Employer.

Much hinged on oral evidence here. The major claim by the Complainant that he had been effectively “Blackballed” or socially and professionally excluded by the Respondent I found hard to understand. For the overwhelming part of the time period in question (March to May) the Complainant had been with one other staff member on a major job in Dublin 4. They had travelled together and had in reality little daily interaction with other colleagues. In his oral evidence the Complainant as much as admitted that he had largely relied on comments made by this colleague – Mr XA, rather than any other colleagues. This was not really consistent with being “excluded” by the remaining workforce. In this context the allegation of what was tantamount to a “Whispering” and negative climate directed against the Complainant I found hard to support from the evidence given.

The Respondent Principal, Mr. XC, had been, in evidence quite matter of fact about the PI Action which arose from a Road Traffic accident. They had been in business for a good many years and these things, while serious, happen during an Engineering operation. He had no personal ill will against the Complainant as a result. There was no suggestion that the claim would close the Company. On balance I found this evidence credible.

The actual ending of work had arisen out of a verbal exchange with the Complainant on a Friday evening. It seemed to the Respondent Manger that the Complainant had decided to leave and that was that. The Complainant made allegations regarding this conversation and the strong language allegedly used by the Respondent. It was very unclear, at this remove, what had actually been said but suffice to say that there was no doubt but the Complainant had made it plain that he was leaving and would not be back the next week.

It was noteworthy I felt that the Complainant’s immediate colleague, on the Dublin job, Mr. XA, had resigned the same day or very close to it, as had the Complainant. It was also clear that they both took up work almost immediately with a Competitor. Evidence was given that they had been seen, very shortly afterwards, in a Competitors van and met by Respondent staff at a Service Station on the Naas Road while travelling to a job/work site.

Evidence was given by a Respondent Manager, Mr. XB, regarding the job in Dublin 4 that the two men had worked on prior to the resignations. There had been no obvious issues of complaint from either party. The Complainant had not raised any formal issues of grievance.

Reading payment issues the Respondent indicated in evidence that the Complainant had been the initiator of a NERA inspection of the Respondent and no fundamental breaches were found.

Accordingly, having considered all the evidence I did not find that the Unreasonable Behaviour of the Employer test had been satisfied by the Complainant. The Burden of Proof is on the Employee in a Constructive Dismissal case and I did not find that it was satisfied to a degree necessary to support a claim.

3:2:       Use of Procedures by the Complainant – SI 146 of 2000. Statutory Code of Practice on Grievance and Disciplinary Procedures.

It was clear that the Complainant had not raised any formal or indeed informal grievances with the Respondent prior to his resignation. In terms of good legal precedent this was not helpful to his case.

3:3     Conclusions on Constructive Dismissal Complaint.

It was clear that the Complainant was aggrieved regarding not getting Sick Pay during his injury absence, the van travel changes and the extent of self-financed travel he had to incur to get to pick up points.

Considering all the evidence presented at the Oral Hearing and all the Legal precedents regarding Constructive Dismissal as set out in Chapter 19 of the Third edition of Redmond on Dismissal Law by Desmond Ryan -Bloomsbury Professional 2017 I could not find that the evidence warranted a Constructive Resignation.

The claim for Constructive Dismissal accordingly fails.

3:4       Terms of Employment (Information) Act, 1994 Complaint. CA -00021119-001

The Respondent produced in evidence a signed copy of a Contract dated the 28th October 2016. The signature was resolutely denied by the Complainant’s Legal Representative. A request was made for a Handwriting Expert to be called to give evidence on the signature.

On the balance of probability and having listened to the oral evidence I found that the Respondent was the more credible. I did not see the merit in calling a Handwriting expert to give evidence.

The claim is dismissed.

3:5       Section 27 of the Organisation of Working Time Act, 1997 CA -00021119-006 – Starting and Finishing Times on site.

Having listened to the Oral evidence from, the Respondent Production Manager, Mr. XD, regarding the operation of Dublin sites and the planning and noise conditions often attached to them I had to come to the view that Starting Times were well communicated in advance to employees and finishing times were also well know save in emergency situations. I found the Production Manager a credible witness.

Accordingly, having considered all the oral evidence I came to the view that the balance of probability lay with the Respondent.

Accordingly, the claim is not well founded and must be dismissed.

3:6       Section 6 of the Payment of Wages Act, 1991 Complaint   CA-00021119-008 / payment for weekend working.

Again, having listened to the oral evidence and the considering the credibility of the witnesses I had to come to the view that weekend working was paid for. Much was made of the NERA Inspection that had, as stated in the Respondent evidence, not found any major faults with the Payment systems or arrangements.

The Complainant was, I felt, quite vague in his evidence.

The work of the Complainant is quite specialised and highly skilled in the Construction Sector -to maintain that he was not paid for weekend working I found hard to believe, especially in the current climate of skill shortages.

Accordingly, I had, on the balance of probability, to find that the claim was not well founded and must be dismissed.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021119-001

Claim is dismissed

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00021119-006

Claim is dismissed

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

CA-00021119-007

Claim for Constructive Dismissal fails.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00021119-008

Claim is not well founded and is dismissed.