Complainant

Respondent

Anonymised Parties

An Employee

A Contract Cleaning Company

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-00017109-001

28/01/2018

The Complainant’s employment transferred to the Respondent, a contract cleaning provider, on 6 December 2015. This transfer took place under the European Communities (Protection of Employees on Transfer of Undertaking) Regulation 2003 (TUPE). The Complainant had worked with the previous contractor since May 2002.

The Complainant tendered his resignation to the Respondent on 22 November 2017 and finished work on 6 December 2017, having worked his two week’s notice.

The Complainant’s complaint for constructive dismissal, under the Unfair Dismissal is Act, 1977, was submitted to the WRC on 28 January 2018.

The Complainant submitted his complaint for Constructive Dismissal and supported it in this regard with the following reasons:

1.       Holidays denied:

In support of this element of his complaint, the Complainant submitted that he applied for holidays on four occasions and that on each occasion this was denied. The Complainant submitted that he sent emails to HR with regard to holiday requests but got no reply. According to the Complainant he sought explanation as to why his holiday requests were being declined and how other people were allowed to go on holidays on the same dates he had requested, although their applications were later than his.

According to the Complainant’s evidence, while he received an email advising a holiday restriction that would apply from 31 July to 6 August 2017, he received no reply in relation to the other dates applied for. The Complainant submitted that in previous years, with other companies, they were allowed to apply for holidays at any time of the year, however, with the Respondent they were not allowed to apply for holidays during the shutdown period.

The Complainant submitted that the Respondent refused his holiday request without reasonable explanation or for untrue reasons. The Complainant stated that the Respondent should meet all his current conditions of employment, including annual leave.

2.       Failure to provide Contract of Employment:

The Complainant submitted that he requested a copy of his Contract of Employment and was never given one, even though it’s a legal requirement for an employer to provide an employee with the contract.

3.       Changes to Work Schedule:

According to the Complainant’s evidence, the Respondent tried to change his work schedule. He further submitted that his manager also tried to train him on a different job and change his working hours, but she was unsuccessful in doing so.

The Complainant submitted that it had been very stressful to be working with the manager, for the last year, as she appeared to be doing everything to try to make him resign from his job.

4.       Refusal to provide Duty List:

In relation to this aspect of his complaint, the Complainant submitted that his manager refused to provide him with a duty list and that she kept changing his working duties. According to the Respondent, the manager would instruct them to do one thing on one day and the next day would give out because he was doing what she had asked him to do. The Complainant submitted that this negates the fact that she instructed him to carry out these instructions.

5.       Payslip issue:

According to the Complainant’s evidence, he did not receive any payslips from the Respondent for a year and a half, despite sending countless emails requesting same.

The Complainant submitted that the Respondent informed him that his email appeared to be the problem. However, the Complainant stated that on 27 May 2017 he received an email about holiday restrictions.

The Complainant submitted that while he received some of his payslips on 11 September 2017, those from 2016 were still missing.

6.       Letter of false testimony:

In support of this element of his complaint, the Complainant submitted that he received a letter regarding a meeting with the Respondent’s Area Manager and the Client’s Co-ordinator, confirming the Client’s request for cross training on the client site.   According to the Complainant’s evidence, he was not even at work on the date that the Respondent is claiming he attended the meeting, at which he agreed to move to another building. The Complainant submitted that he was on leave during this period.

The Complainant also stated that other employees complained this matter to SIPTU.

In conclusion, in respect of his overall complaint, the Complainant submitted that the Respondent greatly stresses their employees and does not respect employees’ rights.

Background:

It was submitted on behalf of the Respondent that the Complainant transferred to their employment on 6 December 2015. It was submitted that his original hire date with the previous contractor was 7 May 2002. The Respondent further submitted that, on transfer, all employees were offered a Contract of Employment, however, all refused to sign this contract.

According to the Respondent’s evidence, the Complainant worked as a janitor from Monday to Thursday (8 AM to 4 PM) and on Friday, 8 AM to 2 PM). The Respondent stated that all the Complainant’s breaks were paid.

The Respondent submitted that the Complainant tendered his resignation on 22 November 2017 and finished working for the Respondent on 6 December 2017. It was further submitted that the Complainant commenced work with his new employer, the Respondent’s client, on 11 December 2017, having completed two training days on 8/9 December 2017.

Respondent’s response to the Complainant’s specific complaints:

1.       Holidays denied:

The Respondent stated that it has a policy on every site that there is a limit to the number of employees who can be an annual leave at any one time. It was further stated that, because of the nature of the business and the contract with the clients (which define the number of hours needed by the client to maintain a high standard of cleaning), when an employee is on annual leave, the Respondent is required to arrange cover staff to work the hours on the client site.

The total number of employees on the client site in question fluctuates due to certain client demands, but is, on average, 40. According to the Respondent’s evidence, the quota allowed on annual leave on this site is either two full-time and one part-time or five part-time employees. This means that there is a total of approximately 20 hours to be covered per day which is the maximum number for which cover can be arranged.

According to the Respondent’s evidence, all staff are aware of the annual leave policy, as it is communicated by the Site Co-ordinator.

It was submitted that the busiest time of the year for the Respondent is Galway race week and the week after, as most of the medical device companies shut down for that period and request annual deep cleans. The Respondent stated that this means they cannot have any employees in the Galway area on annual leave for those two weeks, except in exceptional circumstances (e.g. getting married).

The Respondent submitted that this was communicated, in advance, to all relevant employees each year. According to the Respondent, the communication of 6 April 2017, in this respect, contained an error on the dates, but this was subsequently corrected on 25 May 2017. The Respondent contends that this gave employees nine week’s notice of the restriction on annual leave. It was further stated that the Complainant did not request annual leave for this period or lodge a grievance of any kind in relation to this policy.

According to the Respondent’s evidence, on 17 July 2017, the Complainant requested annual leave from 11 – 16 September 2015 (five days) and was refused as the quota of employees and annual leave was full. The Respondent stated that this refusal was given verbally. The Respondent submitted that two employees who had requested annual leave during the same period left their employment and, as a result, the Complainant was informed that he could take the annual leave he originally requested. However, the Respondent stated that the Complainant declined this offer.

The Respondent submitted that, on 1 November 2017, the Complainant applied for annual leave for 17 November (one day). The Respondent stated that this request was refused as the quota of employees on annual leave was full. The Respondent further submitted that, in the meantime, another employee, who applied for annual leave before the Complainant moved to a different site. According to the Respondent, the Complainant reapplied on 15 November 2017 for the leave on 17 November. The Respondent submitted that this request was approved and the Complainant took the day as annual leave.

According to the Respondent, on 13 November 2017, the Complainant applied for annual leave covering the period 20 December 2017 to 5 January 2018 (comprising of 7 days annual leave and 3 Public Holidays). The Respondent stated that this request was refused as the quota was full. The Respondent further submitted that the Complainant was already aware that the annual leave quota for that period was full as it had been announced to all employees individually by the Site Coordinator. The Respondent submitted that the Complainant was informed, on 14 November 2017, that the next available dates for annual leave were January, February and March 2018.

The Respondent also submitted that the Complainant applied for annual leave at other times during 2017 and those application were granted.

2.       Failure to provide a Contract of Employment:

In response to this element of the complaint, the Respondent submitted that there is no record or recollection of the Complainant requesting his Contract of Employment. The Respondent submitted that, all employees who transferred to the Respondent from the previous contractors had refused to sign the Respondent’s contracts. However, it was submitted that the Complainant received a letter of comfort under TUPE regulations, when he transferred to the Respondent.

3.       Changes to work schedule:

In response to this element of the Complainant’s complaint, the Respondent submitted that flexibility is critical to its business. According to the Respondent, clients make last-minute requests on a regular basis which have to be fulfilled in order to retain the contract. It was further stated that clients also make requests for changes to hours to suit their schedule, i.e. cleans requested in the evenings when their employees have left the site.

According to the Respondent’s evidence, a request was made, by the Client, to extend cleaning hours on Friday evenings as employees leave between 1:00pm and 1:30pm. The Respondent submitted that the request was for staff to work from 8:00 to 4:00, Monday – Friday. According to the Respondent, this meant approximately 10 employees would have to work two hours later on Fridays. The Respondent submitted that these changes were communicated to employees, who refused to accept the changes. The Respondent stated that their hours were not changed.

The Respondent submitted that flexibility in different areas of the client sites was also of paramount importance, so that they could arrange cover for employees who are out sick and/or on annual leave. According to the Respondent, it is the practice to cross train employees on all sites where possible. The Respondent pointed out that the request in this case was a specific one from the Client’s Facilities Department.

4.       Refusal to provide a Duty List/letter of false testimony:

In response to the Complainant’s claim under this heading, the Respondent submitted that it produces Cleaning Specification in line with the Client’s Standard Operating Procedures (SOPs). It was submitted that this includes all of the duties that are necessary to carry out the cleaning of the site. It was further submitted that all employees are trained on this Specification. It is further stated that it is not deemed necessary to produce duty lists, as this would just add more paperwork to the system. The Respondent stated that these documents are controlled by the Quality Department, so it would mean having to ensure that the documents will be updated which is deemed a risk of being out of compliance.

According to the Respondent’s evidence, this was agreed at a meeting with the Employee Representatives and the Site Coordinator and HR Manager at a meeting on 7 April 2017, the minutes of which were sent to the Employee Representative with a request that they share them with and update the employees on the matter. The Respondent stated that the Employee Representative committed to do so.

The Respondent submitted that their representatives (IBEC) received a letter from SIPTU, dated 26 June 2017, bringing up the Duty List issue again even though it had been agreed at the 7 April meeting, that the duty list would not be provided. In this regard, the Respondent submitted an email, dated 4 July 2017, from the Site Coordinator, in support of their position that the employees had never approached anybody in the Respondent company in relation to this matter.

According to the Respondent’s evidence, the Site Coordinator has no recollection of the Complainant requesting a duty list. The Respondent further submitted that new staff are constantly being trained and this allows for current staff to be cross trained, again, so that they can cover for employees who were out sick or on annual leave.

The Respondent submitted that, in this instance, an employee left, which meant that duties had to be given to trained employees, like the Complainant, during the transition period. It was submitted that the reason for the change to the Complainant’s duties was based on business needs arising from a client request and because he (the Complainant) was trained in this area.

5.       Payslips Issue:

In response to this element of the complaint, the Respondent stated that, when the Complainant contacted their Payroll Department to inform them that he had not received payslips, he was directed to check his junk/spam mail. The Respondent submitted that the Complainant then approached the Site Coordinator and requested his payslips. According to the Respondent, the Site Coordinator contacted Payroll, who resent the payslips. The Respondent further submitted that the Complainant did not approach the Site Coordinator and/or the Payroll Department after this.

In addition, it was submitted that the Complainant received his payslips to the same email address from day one of his transfer to the Respondent. The Respondent further submitted that there are over 300 staff in the Respondent’s employment and it is extremely rare for there ever to be a problem with receiving payslips by email.

Respondent’s response to the Complainant’s complaint of Constructive Dismissal:

In response to the Complainant’s claim of constructive dismissal, the Respondent referred to the definition of dismissal as contained in Section 1 of the Unfair Dismissals Act, 1977. The Respondent submitted that, in light of this definition and the established principles adopted by the tribunal and the courts, there exists a burden on the employee to demonstrate that:

a.       he was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

b.       that the employer had acted so unreasonably as to make the continuation of the employment intolerable and it was reasonable for the employee to resign.

The Respondent further submitted that, it is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. The Respondent submitted that neither of these criteria have been met in this case.

The Respondent referenced two cases, McCormack v Dunnes Stores and Conway v Ulster Bank in support of their contention that the bar for proving constructive dismissal is very high. In this regard, the Respondent submitted that the Complainant tendered his resignation and worked a period of two weeks’ notice, following which he commenced work in his new employment on the day after his notice expired. Consequently, the Respondent submitted that it is totally inconsistent with constructive dismissal that an employee would continue to work to the notice period.

In conclusion, the Respondent sought a decision that the Complainant’s claim is without merit and, in fact, is vexatious in the extreme.

The Complainant is claiming constructive dismissal on the basis that he had to leave his job due to the conduct of his employer, the Respondent.

Constructive dismissal relates to a situation where an employee terminates their contract of employment, as was the situation in the case at hand.

Section 1 of the Unfair Dismissal of Act, 1977, defines such a dismissal as follows:

“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,”

Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy the dual tests of (1) Breach of Contract and (2) Reasonableness. The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. However, it is now also generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. All other reasonable options including grievance procedures must be explored.

The reasonableness test requires that the Complainant must satisfactorily demonstrate that the Respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Complainant must also show that their own action/behaviour in resigning was reasonable in all the circumstances. This is regularly referred to as the mirror image concept.

Unlike a complaint of unfair dismissal, where the burden of proof rests with the employer to show that the dismissal was not unfair, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign based on their employer’s conduct.

As already stated significant case law exists which underpins the above concepts. For example, with regard to the burden of proof, the Employment Appeals Tribunal (EAT) held, in UD 1146/2011, that “in such cases [constructive dismissal] a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

This was further confirmed in the case of Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84), where it is stated that: “the onus is on the claimant to prove his case” and that “the test for the claimant is whether it was reasonable for him to terminate his contract”.  

It is also well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

The behaviour of the employer in such scenarios is referred to by the EAT in Donnegan Vs County Limerick VEC [UD828/2011] where it is stated: “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated: “The notion places a 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 her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

Against the background of the above tests and in the context of the established case law in this regard, I carefully considered the evidence presented by the Complainant in support of his contention that he had no option but to leave his job. In this regard, I carefully reviewed the specific reasons presented by the Complainant in support of his claim for constructive dismissal.

Holidays denied:

The first issue related to an alleged refusal by the Respondent to approve annual leave requests on four occasions. The Respondent’s evidence clearly shows that they operate a quota system when it comes to the number of people allowed away on annual leave at any given time. The operation of such quota systems for annual leave is commonplace and widespread across businesses and/or organisations across a variety of industries/sectors in this country. Consequently, I find that the Respondent’s application of the system in relation to the Client site, on which the Complainant worked, was both reasonable and understandable.

It is noted that three specific annual leave requests, which the Complainant evidenced at the Hearing in support of this element of his complaint, were all rejected on the basis that quota limits had been reached for the periods being requested, at the time the Complainant applied. Consequently, I find that the Respondent’s decision in this regard was reasonable in the circumstances and could not be construed as discriminating against or victimising the Complainant on a personal level.

In this regard, I also note the Respondent’s evidence that, on two of the occasions in question, when other employees, who had annual leave approved for the periods sought by the Complainant, dropped off the list for various reasons, he was then offered these dates. The Respondent’s evidence suggests that the Complainant availed of the leave on one of those occasions but not on the other.

In addition, I note that other requests from the Complainant for annual leave during that leave year were approved without issue. Therefore, I am satisfied that there was nothing untoward in the manner in which the Complainant’s annual leave requests were handled by the Respondent and, from the evidence presented, it appears that this was consistent with their management of annual leave for all employees on the site.

Finally, in relation to the annual leave aspect of his complaint, the Complainant objected to the Respondent’s imposition of a leave ban during the last week of July and the first week of August 2017. Having carefully considered the evidence adduced in this regard, I am fully satisfied that the period in question coincided with the shutdown of the Client site and their request to the Respondent for a deep clean of the site while their (the Client’s) employees were on leave. Given the Respondent’s role on the client site as cleaning providers it is wholly understandable and reasonable, from a business perspective, that the Respondent will comply with the Client’s requests in this regard. In that context, I can find no reasonable grounds for the Complainant’s objections in this regard.

Consequently, taking all of the above into consideration, I am satisfied that the Respondent acted in a reasonable manner in its handling of these specific annual leave requests from the Complainant. Therefore, I find the Complainant’s claims in this regard   are not well founded.

Failure to provide Contract of Employment:

The second reason presented by the Complainant in support of his decision to resign from his employment with the Respondent, related to their alleged refusal to provide him with a copy of his Contract of Employment, when same was requested.

In response to this element of the complaint, the Respondent submitted that the Complainant transferred to their employment on 6 December 2015, when they took over the contract on the Client site from a previous provider, for whom the Complainant had worked since May 2002. The Respondent further submitted that, on transfer, which took place under the European Communities (Protection of Employees on Transfer of Undertaking) Regulation 2003 (TUPE), all employees were offered Contracts of Employment by the Respondent. However, the Respondent stated in evidence that all employees, including the Complainant, refused to sign these contracts.

According to the Respondent’s evidence, a letter of comfort, dated 20 November 2015, was provided to all employees, including the Complainant. This correspondence, which was presented in evidence at the Hearing, clearly indicated, inter alia, that “All of your current conditions of employment will be honoured”.

In further submission, the Respondent stated that there is no record or recollection of the Complainant have requested a copy of his Contract of Employment during the term of his employment with the Respondent.

Consequently, taking all of the above into consideration I am satisfied that the Respondent acted in a reasonable and appropriate manner with regard to the transfer of the Complainant’s employment to them and, as a result, I find that the Complainant’s claim in this regard is not well founded.

Changes to work schedule:

Having carefully considered all of the evidence presented with regard to this element of the Complainant’s complaint, I am satisfied that the issues concerned (i.e. changes to working times and duties) were dealt with in a collective rather than an individual context. Therefore, the matters must be seen more in the context of an industrial relations issue rather than as a matter of individual rights. This view was clearly supported by the fact that a number of the employees involved sought Trade Union representation on the matter and that it was also the subject of a WRC Conciliation Conference.

The evidence adduced in this regard also shows that the efforts by Respondent to change work schedules were not successful in this instance and that the Complainant’s hours were not changed.

Consequently, taking all of the above into consideration, I find that the Complainant’s claim that, with specific reference to him, the Respondent was unreasonable in their approach to the issues of changes to work schedule, is not well founded.

Refusal to provide a Duty List:

As with the matter of the imposition of an annual leave blackout period in July/August, the evidence adduced suggests that changes in individual duties and times are driven by the Client rather than any specific decisions taken by the Respondent. I also note from the evidence that the cross training was required in order to accommodate shift changes which were also requested by the Client.

Against this background and having carefully considered the detailed evidence provided by the Respondent, I am satisfied that this again was a collective issue and was not specific to the Complainant alone. Therefore, I find the Complainant’s contention that the Respondent’s handling of this matter represented unreasonable behaviour, to the extent that it justified his termination of his employment, is not tenable. Consequently, I find that his claim in this regard is not well founded.

Payslips Issue:

Having carefully considered the evidence adduced in relation to this element of the Complainant’s complaint I am satisfied that it is the Respondent’s policy and practice to issue electronic payslips to all staff.

In addition I note from evidence furnished by the Respondent that, when, on 26 January 2017, the Complainant requested, by email, copies of his payslips and P60 for 2016, these were provided on the following day from the Respondent’s Accounts Department.

Based on this I am satisfied that the Complainant’s complaint in relation to the non-receipt of payslips is not well founded.

Letter of false testimony

The final element of the Complainant’s complaint in support of his claim for constructive dismissal related to correspondence which he received from the Respondent, alleging he was in attendance at a meeting when, in fact, he was on annual leave.

Having carefully reviewed the documentary evidence presented by the Respondent in this regard, I am satisfied, that the Complainant was not in attendance at the meeting in question.   However, given that this was a meeting with staff, in relation to collective issues which was taking place in the context of industrial relations negotiations, I am of the view that the reference to the Complainant being in attendance at the meeting, was a genuine error, which arose on a general rather than a specific basis.

Consequently, I am satisfied that this particular issue does not provide reasonable grounds to support a claim of Constructive Dismissal.

Complaint of Constructive Dismissal:

Having carefully considered all of the evidence presented and, in particular, having addressed each of the reasons submitted by the Complainant in support of his decision to terminate his employment with the Respondent, I find none of that evidence provides a basis to suggest that a breach of contract took place or that the Respondent behaved in such an unreasonable manner as to justify the Complainant’s termination of his employment.

In order to make a successful claim of constructive dismissal, an employee must be in a position to   demonstrate that they availed of all the internal policies and procedures available to have their grievances addressed. There is no evidence to suggest that the Complainant made any effort to raise any issues or grievances with the Respondent.

Moreover, I find that having tendered his resignation and working out his two weeks’ notice, the Complainant’s taking up employment with the Respondent’s Client, on the same site, on the following day, is inconsistent with his claim of constructive dismissal.

Therefore, taking all of the above into consideration I find no grounds which support the Complainant’s contention that the termination of his employment with the Respondent was the only reasonable option open to him in the circumstances.   Consequently, the Complainant’s complaint of constructive dismissal is not upheld.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint of constructive dismissal is not well founded and is, therefore, not upheld.

Unfair Dismissals Act

Constructive Dismissal