Complainant

Respondent

Anonymised Parties

A Caretaker

A School

Act

Complaint Reference No.

Date of Receipt

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

CA-00020239-001

04/07/2018

The Complainant claims that the Respondent showed reckless disregard for his safety, held unfounded assumptions and suspicion against him and unilaterally altered his contract of employment which forced him to resign from his position. This is a claim of constructive dismissal.

The Respondent refutes the claims made. It said that the Complainant had threatened to leave, left, and returned on numerous occasions down through the years. He resigned his position in March 2018 of his own free will. The position was left open for him with the hope that he would return, again. There is no claim of constructive dismissal.

The Complainant was employed as a Caretaker in the Respondent’s School. He said that he worked approx. 25 hours per week and was paid €10 per hour. He claims that many of the hours he worked were outside the normal business hours of the school, including responding to alarms, tending to the premises on Friday nights for bingo and often when the boiler needed bleeding to get the heating to work on cold mornings.

The Complainant said that in 2016 he was offered another job and he gave one months’ notice. The Respondent had advertised and interviewed for the post but were unable to fill the position and the Complainant was still required to help out. He said he was approached and was offered an increase of his hourly rate to €13.50. He said that his contracted work hours were 12 noon to 5pm Tuesday to Friday and 11am to 4pm Mondays but he never worked those hours, much of the time he was at the school early or indeed late in the evening.

The Complainant said that during the inclement weather conditions in February/March 2018, he contacted the principal Mr. A on the Sunday evening 4 March to enquire if the school would open on the following day Monday 5 March as there was heavy snowfall and the nearby school was still closed. They agreed to meet at the school to inspect conditions and the Complainant was advised to clear a pathway into the school for staff and students to pass. The Complainant said he advised Mr. A that conditions were hazardous, but he was instructed to clear the pathway, he was given no protective gear or equipment, he slipped and banged his head off the railing and also hurt his hip.  

The Complainant rang his wife who collected him and brought him to hospital, where he was assessed and certified as unfit to work for a week until 12 March 2018. He said his wife dropped off the medical certificate to the Respondent, but he never received an acknowledgment from the school or someone to enquire how he was after his accident.

He said that when he returned to the school on 12 March 2018, Mr. A was unusually quiet and did not make any reference to his fall. Mr. A approached him with a contract of employment with specified work hours listed and said that the school’s insurers were insisting that they were included. He also said that he had taken legal advice and he would not be speaking to the Complainant without a third-party present at all times. The Complainant said that he was “grand and he had no intention of making a personal injuries claim against the school”. He said that he did not know what was going on. He had two previous accidents in the school and he made no claim against the school.

The Complainant said that he received a letter which indicated that as per his contract the hours he was expected to work every day were, either, (1) 11am to 4pm, or (2) 12noon to 5pm. It stated that “…the Board of Management has no idea of hours worked by you and our insurers are not prepared to insure any person who hasn’t got a contract with set and definite hours...”. The Complainant said that this raises a number of questions as to the insurance that was in place up to that point and what insurance cover was in place should he have to respond to an alarm or tend to the boiler outside of the set hours of contract. The following day Mr. A told the Complainant to hand back his keys and later sent him a text message which read, “Your job is still there, all you have to do is decide on option A or B. if you want to discuss you can call to school tomorrow at 12 in my office but [Ms. B] will be present. It is up to you now.” By letter dated 14 March, Mr. A wrote to the Complainant setting out that he would meet the Complainant and his representative the following day, 15 March, at his office to discuss if the Complainant still wished to work for the school. The Complainant resigned his position on 16 March 2018.

The Complainant said that the Respondent’s actions displayed a total disregard for his safety, health and welfare at work during treacherous weather conditions, that unrealistic demands were made of him and he was not offered assistance or specialist equipment to fulfil those demands. He said that this caused him to fall, requiring him to get medical attention and he was unfit for work subsequently. The environment was unsafe, he had raised that concern with his employer and was not listened too.

The Complainant said the Respondent failed to enquire as to his wellbeing or offer an apology. It was assumed that he would make a personal injury claim and would not speak with him without a third person present. All of which demonstrates the breakdown of trust between the Complainant and the Respondent at that point in time.

The Complainant said that the Respondent sought to make unilateral amendments to his contract of employment and asked him to hand back his keys on 13 March 2018. He said that there was a failure to provide a safe place to work and a failure to treat him with respect. He said the Respondent made no effort to establish why he resigned or attempts for him to stay.

Legal Arguments

The Complainant has the sufficient service required with the Respondent to qualify for the protection afforded by Section 2(1)(a) of the Unfair Dismissal Acts.

There are two tests in relation to constructive dismissal, the “contract test” where there are fundamental breaches to the contract by the employer and the “reasonableness test” where the conduct of the employers was so that it was reasonable for the employee to resign. The Complainant cited the leading applicable caselaw in relation to the maintenance of mutual trust and confidence including [O’Kane v Dunnes Stores LTD UD1547/2003], the provision of a safe place to work [Maddy v Duffner Bros Ltd. UD803/86] and the right to be treated with respect [Corcoran v Central Remedial Clinic UD7/1978].

The Complainant cited leading decisions supporting a claim of constructive dismissal where the Employer made false allegations, where there was a perceived lack of fairness, where there was a lack of clarity of an employee’s role leading to frustration and many cases demonstrating situations which were deemed to be unreasonable conduct from the Respondent.

The Complainant claims that under Section 6(6) there is an obligation on the Respondent to justify dismissal and the axiomatic principle in employment law that an employee enjoys a contractual and constitutional right to fair procedures, citing Paragraph 21.100 of Cox, Corbett & Ryan in Employment Law in Ireland (2009) to support his position.

The Respondent said the Complainant commenced employment as a caretaker/cleaner with in April 2012.

The Respondent said it generally got on well with him and wanted to help him to be successful in the post. It claims that it was good to him. It claims that he has in the past handed in his notice on numerous occasions, for one reason or another, and then reversed that decision and looked return. The school always took him back, notwithstanding that on the most recent occasion where the position was offered to another person following interview and the Respondent had to approach that candidate and seek his approval to reinstate the Complainant.

On his most recent return to work it was agreed that he would sign a contract of employment which specified that he would work between the hours of 8am and 5pm, for five hours per day, it was agreed with him that he would work Monday 11am to 4pm and Tuesday to Friday 12noon to 5pm. This was to facilitate him with his taxi business. His wages were increased to €15 per hour.

Mr. A said that he received a text message from the Complainant on Sunday 4 March 2018 enquiring if the school would open the following day; they met at the school that evening and it was agreed that the Complainant would clear the snow from the paths into the school and around the door ways. Mr. A sent an email to parents that evening to confirm that the school would be open the following morning from 8am. Later that evening the Complainant sent two text messages, the first to say he had cleared the snow but there was a health and safety concern in opening the following morning, and the second some time later that it might not be so hazardous after all as it was raining. Mr. A thanked the Complainant.

Mr. A said that he arrived at the school the following day - 5th March - at 7:30am opened the school and prepared for the day. He said that the Complainant was not there in the morning, he did not see him all day and he was not present when he locked up the school that evening after 3pm. He did not see his car in the car park. Mr. A said that just after 4pm he received a call from the Complainant’s wife saying that the Complainant could not lock the school as he had fallen. Less than an hour later the Complainant rang Mr. A and was very irate, saying he was getting medical attention, that he warned him the day before not to open the school, that he had reported Mr. A to the health and safety authorities and that the school would be hearing from him and he had pictures to back-up his case. The Complainant subsequently went on sick leave for a week.

The Respondent wrote to the Complainant on 12 March and said that the Insurance company that held the school’s policy stated that it was not prepared to insure any of the Respondent’s employees that did not have a contract with set and definite hours. He was asked to make a choice, either 11am to 4pm or, 12pm to 5pm every day. On Tuesday 13 March the Complainant arrived at Mr. A’s office. He was aggressive and used foul language toward Mr. A, who said that he was not willing to speak with him until he had a member of staff present. Mr. A’s evidence is that the Complainant continued in this manner and Mr. A was forced to leave his office. He said that the Complainant left the school but quickly returned and handed Mr. A his set of keys and said, “you know where you can stick these” and “I wouldn’t work for anyone who can’t talk to me.” Mr. A said that he texted the Complainant later that evening stating that his job remains there for him, that he will have to nominate his hours he and offered to meet with the Complainant the following day in his office at 12 noon but that another member of staff would be present.

The Complainant contacted the school the following day said that he had taken legal advice, that he was entitled to 48 hours advanced warning before any meeting was held and he wanted his legal representative present with him. He also sought a copy of his contract. The Respondent wrote to him acceding to his request, attaching his contract of employment and setting the meeting for Thursday at 12 noon. The Complainant failed to attend. A further meeting was arranged for the Complainant and his representative, but he again failed to attend. A letter of resignation dated 16 March 2018 was received. The Respondent said that it did not fill the Complainant’s post in the hope that he would return as he had done many times before. A member of the Board of Management approached him and urged him to return to his position, but he never returned.

Legal Arguments

The Respondent referred to the definition of Constructive Dismissal under the Unfair Dismissal Acts.

The Respondent cited the leading case law with regard to the need to carry out an objective assessment of the reasonableness of the employers behaviour [Berber v Dunnes 2009] and the reasonableness test [Western Excavating ECC Limited v Sharp 1978], and stated the onus of proof rests with the Complainant and it is a stringent one, where he will have to demonstrate that the Respondents’ behaviour was such that no employee could reasonably be expected to tolerate the conduct complained of any longer.

The Respondent also suggested that it is well established that it is incumbent on the employee to utilise the internal grievances process to a conclusion before resorting to resigning, which he did not engage in at all. [Conway v Ulster Bank UD1981]

The Respondent claims the Complainant’s reasons for resignation were not objectively reasonable and do not relate to any fundamental breach of contract on the part of his employer.

The Relevant Law

Section 1 of the Unfair dismissal act defines “dismissal”, in relation to an employee, means—

“(b) 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.”

The term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition, Section 1(b) of the Act which provides that:

In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of his contract of employment. It was not in dispute that the Complainant resigned from his position by letter on 16 March 2018.

The Complainant is claiming that he was constructively dismissed from his position as caretaker with the Respondent.

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The appropriate legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. 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, it said that “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.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.

The Complainant claims that his relationship with Mr. A and the Respondent had broken down beyond repair and he was squarely blaming the Respondent for that. The Complainant claims that his position ultimately became untenable and he was left with no alternative but to resign from his employment.

The Respondent disputes the claim of constructive dismissal. It said that it was dealing with some fairly abusive situations from the Complainant, who happened to be threatening the Respondent that he was going to take action and had the photo evidence to support his claim. Conceivably legal action. Mr. A’s direct evidence is he was having to deal with two aggressive outbursts. He invited the Complainant to meetings to deal with the matter, but the Complainant failed to show. The Respondent contends that there were serious matters in relation to its insurance and they were trying to resolve that. It claims that the Complainant resigned of his own volition after failing to meet with the Respondent or to raise an internal grievance. His job was left open and available to him and a member of the Board of Management tried to persuade him to return but to no avail.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of his employment other than to terminate his or her employment. The notion places a very 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 his grievance with his employers.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign:Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In considering this issue, I am satisfied that the Respondent had a concern over the hours of work worked by the Complainant as was highlighted by its insurance company. It sought to put that right with the Complainant. I am satisfied that the relationship between the Complainant and Mr. A turned sour very quickly and I cannot accept the Complainant’s evidence that he did not know why there was a change in Mr. A’s mood towards him. On the balance of probabilities, I prefer Mr. A’s evidence here that during a telephone call the Complainant was aggressive and indicated that he would be following the school for his unfortunate injuries. I am satisfied that the Respondent attempted to meet with the Complainant and his legal representative, but the Complainant failed to turn up.

In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to activate the internal procedures before taking the step to resign from his employment. However, based on the evidence adduced, I do not accept that the Complainant sought to get a resolution or follow that route.

There are many sequences in the evidence where there are subtle but fundamental differences of opinion between the parties on fact. I am satisfied in the main that the Respondent’s evidence appears more robust and consistent here, and on the balance of probabilities I prefer its version of events over the Complainant’s evidence.

In the circumstances, I find that the Complainant has not established that the conduct of the Respondent was such that he had no option but to resign his position. I find that the Complainant did not give the Respondent an opportunity to address his concerns before taking the decision to resign from his employment.

I find that the Complainant has not established a case that he had no option but to resign his position. Accordingly, I find that the Complainant was not constructively dismissed from his employment.  

I find that the Complainant’s case is not well founded. He has not established a case that he had no option but to resign his position. Accordingly, I find that the Complainant was not constructively dismissed from his employment.