UDD1934

This is a cross appeal by both parties of a decision by an Adjudication Officer, (AO), of the Workplace Relations Commission, (WRC) under the Unfair Dismissals Act, that Mr. Guerin, ‘the Complainant’, had been constructively dismissed by Joe Lawlor Ltd., ‘the Respondent’. The Complainant appealed the amount of €4,000 awarded as compensation. The Respondent appealed the substantive decision.

Background

The Complainant was employed by the Respondent for a little over a year, from May 2016 to June 2017, as a paver, the Respondent being a groundwork and paving contractor based in Limerick.

The Complainant’s case hinges on what he believed to be a clear undertaking given to him by the Respondent that he would not be required to work outside an area that was within commuting distance of Limerick.

The Respondent denies that any such ongoing undertaking was given.

In June 2017, the Complainant was asked to work in Dublin for a week. He asserted what he believed to be his entitlement not to travel. When the Respondent responded negatively to this, the Complainant offered to take the week off unpaid. This was not acceptable to the Respondent. There was disagreement between the parties as to whether the Respondent suggested that the Complainant could travel to Dublin every morning and return to Limerick in the evening.

The Respondent suggested that the Complainant come in the following day to discuss the matter further. The Complainant did not do so as he said that he did not wish to be intimidated.

At that point, the Complainant resigned from the employment.

The Complainant took a claim to the WRC and the AO found that he had been constructively dismissed but that the Complainant had contributed to his dismissal, thereby warranting a reduction of the quantum of compensation to €4,000.

The Respondent appealed the substantive decision to the Court and the Complainant appealed the quantum awarded.

Complainant’s arguments

There was no employment contract. However, the Complainant entered into a verbal agreement with the Respondent on wages, hours and days of work and, crucially, that he would not be required to work outside Limerick or the surrounding area. The Complainant raised the possibility of getting his own van but the Respondent insisted on an arrangement whereby he was picked up every morning. The Complainant found the owner of the Respondent to be disagreeable and this caused him stress.

When the Respondent told the Complainant a few days before the work in Dublin was due to start that he would be required to work in Dublin for a week, the Complainant reminded the Respondent of their agreement that he would not be required to do so. The Respondent replied angrily and insisted that he travel. The Complainant suggested a compromise that he would take a week off without pay. The Respondent was not agreeable. The Complainant suggested this meant that they were ‘finished’ and the Respondent reacted angrily again before suggesting that the Complainant come to him the following day to ‘go through details’. The Complainant did not do so as he felt that the Respondent owner and his brother would seek to intimidate him. The Complainant sought his P45 and his entitlements, some of which were the subject of subsequent successful claims to the WRC.

At the adjudication hearing, the Respondent had introduced evidence that he had suggested the Complainant could travel to Dublin each day during the relevant week. This allegation is denied and, notably, was not contained in the Respondent’s written submissions to the WRC.

The Dublin work appears to have been as a result of a new major contract with a large retail chain but no consideration was given to the breach involved in the Complainant’s terms of employment.

There was no written contract in place to make clear the place of work and there was no grievance procedure that the Complainant could utilise.

Apart from pay and hours, for personal reasons, the geographical limitation was the fundamental point insisted upon by the Complainant when taking up the job. It was a fundamental term of the contract.

The Complainant sought to engage with the Respondent on the issue prior to resigning and even offered a compromise that was rejected.

There was no contribution by the Complainant to his constructive dismissal. He had asserted his contractual entitlement and had shown flexibility as he had shown previously when going to Dublin for one night and when travelling up and down to Cashel for a week.

The Respondent had breached the contract, had failed to agree a compromise suggestion, had failed to provide a written contract and had failed to have a grievance procedure. The full calculated loss of earnings of €19,034 gross should be awarded.

Respondent’s arguments

The AO erred in law and fact. The Complainant was not unfairly dismissed, he left the company voluntarily.

There was no agreement regarding the Complainant’s geographical area of work.

The Complainant did not behave responsibly as he did not engage with a view to resolving his complaint.

The award of €4,000 was excessive.

When the Complainant was interviewed for the job, it was made clear that he would need his own transport. He never provided this.

In May or June 2017, the Complainant worked in Dublin overnight without complaint.

The Respondent needed the Complainant to work on the job in Dublin as a full staff complement was required and, therefore, the suggestion of a week’s unpaid leave was not realistic. The Complainant, when told this, requested his P45. The Respondent did not get angry or threatening. The Complainant did not turn up for work subsequently.

The Complainant requested his P45 by text subsequently, which the Respondent was not prepared to provide without written notice of resignation. This was never received.

The reasons offered by the Complainant for not wishing to travel were because of his caring duties for his grandfather and because his partner was pregnant. At the adjudication hearing, the Complainant clarified that he was not the main carer for his grandfather and that he found out about his partner’s pregnancy after he ceased work for the Respondent.

The hours of work were the main emphasis of the Complainant in his conversation with the Respondent when he applied for the job.

The work in Dublin was for one week only and the Respondent offered him the chance to travel up and down each day for the week.

The Complainant declined the offer of discussion with the Respondent on the issue that had arisen.

Constructive dismissal claims must reach a very high bar. Either it must be established, as perDebbie Kearns v Silverfern Properties Ltd (2013) 2 JIEC 0701that the ‘contractual terms were altered in such a way, going to the root of the contract as to justify..’or they must show a level of unreasonableness in the behaviour of the employer, such that it is reasonable for the employee to resign’ Neither is applicable in this case. There was no contractual agreement on geographical limitations and the Complainant did not behave reasonably by refusing to engage with the Respondent to try to resolve the issue. Thus, there are no facts on which the Complainant can rely to ground a claim for either a fundamental breach of contract or that the Respondent’s behaviour was so unreasonable as to make it reasonable for the Complainant to terminate his employment.

Witness evidence

Mr. Darren Guerin

Mr. Guerin, the Complainant, gave evidence that he was in other employment when the opportunity came up for employment with the Respondent. A week or two prior to commencing work with the Respondent, he met the owner at a garage outside Limerick. He remembered clearly that they had a discussion about limiting any requirement to travel as this was one of the conditions he was seeking in any possible new job. He was assured by the owner that he would be working in Limerick and surrounding areas. He had been assured specifically in a half jocose way that they ‘would not be travelling to the likes of Dublin anyway’. This was a significant factor in his decision to take the job.

He outlined in detail the circumstances that led to his resignation as per his submission to the Court.

He stated that the owner of the Respondent company had become very angry and aggressive to him at the time of his resignation and had told him that he would not get his P45 and that he would inform the ‘dole office’ that the Complainant had left the employment voluntarily. He did not take up the subsequent offer to come in to talk further about the situation as he felt that he would be intimidated by the owner of the Respondent and his brother.

The witness gave evidence about his earning losses. He stated that he had enrolled with a number of job agencies and he gave a list of roles for which he said that he had applied. He stated that he also sought work directly on building sites. He explained that he had applied for a role with Limerick City and County Council prior to leaving the Respondent’s employment and that he had been put on a ‘list’ subsequently from which he was called for a job in February 2018. He had not secured any other employment prior to that since leaving the employment of the Respondent in June 2017.

Under cross examination and questioning by the Court, he stated that it suited the Respondent to have him picked up rather than use his own transport as it meant he often got to jobs very early. While some details of the interview with the Respondent were sketchy, he recalled clearly the discussion about travelling as he did not need to change jobs at the time but it was an important consideration for him in taking the role. He re-stated that he had agreed to go to Dublin for one night as he wanted to be flexible but going to Dublin for a full week was not acceptable to him and was contrary to what he had been promised.

The witness had no written responses to job applications. He stated that he had never been called for any interviews on foot of his applications, apart from the role that he was now in.

Under questioning, the witness was unsure about some of the details about the appointment process for his current job, in particular as to when he knew he was ‘listed’.

Mr. Joe Lawlor

Mr. Lawlor is the owner of the Respondent.

The witness gave evidence regarding the discussion with the Complainant regarding the issue of travelling. He accepted that the matter had come up in discussion and that he had said ‘at present’ or ‘for the moment’ they would not be travelling beyond Limerick and Munster but he had been clear that, in the construction industry, matters can change.

He stated that the Complainant was a good worker. He said that he was surprised when the issue of travelling became such a problem as he did not know the Complainant cared about it so much. When they had met initially, the witness said that the Complainant appeared to be concerned mainly about working hours as he was working ‘mad hours’ in his existing job. He had been able to re-assure the Complainant on that matter, the hours were fixed and were from Monday to Friday.

He had suggested a compromise to the Complainant when the issue of the Dublin work was raised, to the effect that he could travel daily. The suggestion of unpaid leave was not viable as he needed a full staff complement and, in fact, he had been required to engage a sub-contractor because of the Complainant’s unavailability.

He rejected any suggestion of intimidation when he had suggested that the Complainant come in for a discussion on the matter and, with regard to references to his brother, he noted that his brother had no involvement in the management of the company and was an employee.

He emphasised that, when he engaged the Complainant, there were three applicants for the role and that, if he had known that travel was going to be a big problem for the Complainant, he could have engaged one of the other candidates.

Under cross examination and questioning from the Court, the witness did not dispute that there was a broad similarity in the accounts of the discussion regarding travel, prior to the Complainant being engaged by him as an employee. However, he stressed that this conversation was clearly in the context of the circumstances of the time and that he had been clear that these circumstances could change as, in fact, they had done when he had secured a big contract that required wider travel. He emphasised that he would not have let a potential employee dictate unacceptable terms for his engagement.

The witness accepted that he had said what the Complainant alleged regarding what he would say to the ‘dole office’ and he explained that he wanted a letter of resignation from the Complainant, which he had never received.

The witness stated that he had subsequently texted the Complainant to ask if he was coming back. He stated that he had deleted the texts as they took up storage on his phone. When put to him by the Complainant’s representative that this was untrue, he re-stated it.

The witness stated that there is, and was at the relevant time, a shortage of potential employees in his industry. He stated that no prospective employer had ever contacted him to ask about the Complainant after his departure. In his view, with the skills that he had, the Complainant ought to have been able to secure work within 3 to 4 weeks.

The witness accepted, in hindsight, that the notice given to his employees about the need to spend a week in Dublin was, perhaps, insufficient.

He felt that the offer to the Complainant to travel daily to Dublin was a fair compromise and he denied that he had made up this offer subsequent to the events concerned.

When asked, the witness could not remember saying specifically that the Complainant would not be required to travel to Dublin when they had their initial conversation.

The Law

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(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, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative.

Redress for unfair dismissal.

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 adjudication officer or the Labour 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) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17ofthis Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) ofsection 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee —

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

(2B) Where —

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,

the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Deliberation

In the view of the Court this case turns, to a large extent, on the question as to whether or not a commitment was given to the Complainant, prior to his employment with the Respondent, that he would not be required to travel beyond Limerick and surrounding areas? There is a direct conflict of evidence as to whether or not such a commitment was given or whether or not the observation about travel requirements was intended to reflect the then current situation only and that the possibility of a future change was adverted to in the discussion.

The significance of the point is that if there was a clear commitment given to the Complainant prior to his acceptance of the job then this forms a part of the employment contract. It is often argued that minor breaches of contract do not constitute a basis to ground a claim for constructive dismissal but if the Court accepts the Complainant’s version of his understanding of this alleged contractual term, the Court then has a reason to examine if the breach goes to the root of the contract, such that the Respondent’s actions can be said to have sundered the contract and, thereby, to have caused the constructive dismissal of the Complainant.

The difficulty for the Court is the same difficulty articulated in the AO’s decision. When there is a direct conflict of evidence and neither witness is telling self-evident and obvious untruths, it is a huge problem to identify where the truth lies. In fact, in the instant case, there is little difference between the accounts given of the conversation relied upon by the Complainant in his assertion of a contractual term. Both parties accept that geographical limitations on the travel liabilities of the Complainant were discussed and both parties acknowledge that it was understood at that time that the Complainant would not be required to travel significant distances. The difference lies in the recollection as to whether this was an agreed term intended to last for as long as the Complainant was in the particular employment or whether this amounted to nothing more on the part of the Respondent than an observation on the circumstances then pertaining, offered in response to a query from the Complainant.

In assessing this conflict, the Court notes the absence of a written contract. It was within the power of the Respondent to provide perfect clarity on this point simply by complying with the statutory obligation to set out clearly in writing the terms and conditions of the Complainant’s employment. The Court is entitled to wonder if the absence of a written contract has any significance insofar as it can facilitate ambiguity on the part of any employer in the application of terms of employment?

It is not beyond the bounds of probability that the seemingly slight variation in recollection reflects the significance of the issue to the parties at the time. The Respondent placed little importance on the matter whereas the Complainant has emphasised the centrality of the issue to his consideration as to whether or not to take up the post concerned. That difference of understanding was open to the Respondent to clarify and to replace with certainty in a written contract. That he did not do so led, ultimately, to the circumstances of the Complainant’s departure.

The Court is of the view that the matter was so important to the Complainant and it is accepted by both parties that he raised the matter prior to accepting the job, the obligation was on the Respondent to ensure that there was no ambiguity. The Respondent did not do so and, therefore, on the balance of probabilities, the Court finds that the Complainant has met the burden of proof that he was constructively dismissed. The Complainant was, in the view of the Court, entitled to believe that he had a contractual commitment. Therefore, in asking him to travel to Dublin, the Complainant was entitled to regard the Respondent as acting outside of the contract.

Lord Denning inWestern Excavating (ECC) Ltd v Sharp (1978) ICR 221,IRLR 332set out clearly that, ‘If an 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’.

In the instant case, this term of the contract was so important to the Complainant that, he told the Court in evidence, it was central to his decision to accept the job. That being so, the issue went beyond a mere misunderstanding on a matter of little significance and became an essential term of the contract, the breach of which entitled the Complainant to regard the contract as no longer valid.

However, the Court’s view is that blame can be apportioned to the Complainant in reaching his conclusion regarding the invalidity of his contract of employment without exploring other alternatives when invited to do so by the Respondent. As set out inConway v Ulster Bank Limited UDA 474/1981,in any case of constructive dismissal, the Complainant is expected to act reasonably and to provide the employer with an opportunity to redress any grievances. While the Complainant could point to the absence of a formal grievance procedure, it is common case between the parties that he was invited to discuss his issue. Indeed, the Court might have placed more emphasis on this fact if the owner of the Respondent had not stated in evidence that the purpose of this suggested meeting was to persuade the Complainant to travel rather than to seek a mutually acceptable solution. Nonetheless, the fact is that the Complainant did not attend a requested meeting and that he did so without knowing for certain if the Respondent might have been prepared to offer a solution acceptable to him. In the view of the Court, the AO was correct to take this fact into account in determining the amount of the awarded compensation for the constructive dismissal.

The Court also finds it difficult to understand how the Complainant, who had many construction skills and experiences, struggled for so long to find employment in an industry that was, at that time, and is currently, thriving. The section of the Act quoted above requires the Court to take account of the measures adopted by the employee ‘or, as the case may be, his failure to adopt measures, to mitigate the loss..’

The Court, having determined the substantive point that there was a constructive dismissal is of the view that compensation is the appropriate remedy. In determining the level of this, the Court is mindful of the need to take account of both the extent of the loss that is attributable to the ‘act, omission or conduct by or on behalf of the employee’ and the extent of the actions taken to mitigate any loss.

Taking all factors into account, the Court believes that the AO struck the correct balance in the decision to award compensation of €4,000.

Determination

The decision of the Adjudication Officer is upheld.

Signed on behalf of the Labour Court



Tom Geraghty
CR______________________
8 July, 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.