Complainant

Respondent

Anonymised Parties

A Kitchen Operative

A Community Employment Scheme

Representatives

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-00026027-001

05/02/2019

The respondent is a non-profit organisation with the objective of assisting unemployed people to develop strategies and capabilities through training and employment.  The complainant was employed on a community employment scheme and, following an argument with a colleague on July 23^rd 2018, he went out sick due to stress.  He did not formally resign, but submitted a complaint of unfair dismissal to the WRC on February 5^th 2019.  He claims that he left his employment on August 28^th 2018, due to the conduct of another employee and the failure of his employer to deal with that person’s behaviour to his satisfaction.

On July 23^rd 2018, the complainant was having dinner in the community centre where he works when a delivery arrived.  He said that he asked the meals on wheels driver, “AB,” to tell the delivery driver to bring the goods to the back door, because flies were getting in through the open door of the dining area.  He said he complained to another colleague, “CD,” that the flies were getting in, but AB responded by using foul language, telling him to mind his own business.

On August 2^nd 2018, the complainant submitted a written complaint to his supervisor.  On the same day, AB apologised to the complainant, but the complainant said that he didn’t accept his apology.  He said that AB carries a knife and that he sneers at him when he is walking home from work. 

On August 13^th, the supervisor met the complainant and she explained that she spoke to AB about the complaint and that he admitted cursing at the complainant.  Consideration was given to alternative roles for the complainant, but he said that he liked working in the kitchen and didn’t like the idea of being moved around. 

The complainant’s case is that he is entitled to work in an environment that is free from stress and he feels that the treatment of his colleague, AB, amounted to bullying.  He said that he was so stressed out that he “couldn’t hang around” and he doesn’t want to go back to work on that particular CE scheme.

The CE scheme supervisor said that when she received the complaint about the argument on July 23^rd, she spoke to AB.  She said the complainant never mentioned that AB carried a knife, which she said, is a criminal offence.  She said that he never mentioned AB sneering at him and the sum of his complaint related to the incident on July 23^rd regarding the delivery to the community centre.

Because of his conduct on July 23^rd, the supervisor said AB received a warning and was told not to be in the kitchen area when the complainant was there.  He was instructed to take the meals on wheels boxes from the back of the kitchen.

The complainant went out sick on the day he submitted his complaint against AB, and the supervisor said that the first she heard that he had left the scheme was when she was got correspondence about this complaint from the WRC.

The respondent’s case is that they dealt with the complainant’s allegation of bullying in a reasonable manner, they put in place measures to ensure that there was no repeat of the incident and they made efforts to identify an alternative role for the complainant.

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The issue for decision in this case, is, taking into consideration the conduct of the respondent in relation to this former employee, and considering how his grievance was addressed, was it reasonable for him, or was he entitled to terminate his employment?

The Reasonableness of the Employee’s Decision to Resign

In the case under consideration, the complainant went sick on August 2^nd 2018 following an argument with a colleague.  He did not notify his employer that he resigned and the respondent understood that he was on sick leave.  At the hearing, he said that he was still out sick.  A question arises therefore about whether the complainant has in fact, terminated his employment.  As he submitted a complaint of unfair dismissal on February 5^th 2019, I accept that he has left his job.

Following the submission of his complaint on August 2^nd 2018, AB apologised for using foul language to the complainant.  The supervisor conducting the investigation disciplined AB and she also instructed him not to be in the kitchen on the three days each week that the complainant worked there.  She had a discussion with the complainant about working in an alternative location, but, for several reasons, he didn’t transfer to a different role.

In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the chairman, Mr Haugh stated:

“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer.  Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

It is my view that the way that the respondent dealt with the argument that occurred on July 23^rd 2018 was a considered response to the complainant’s complaint.  Having asked the supervisor to intervene, the complainant then had an obligation to give the situation time to normalise.  I think it was premature on his part to leave his job without giving AB an opportunity to re-establish normal relations with him and to test the arrangement whereby AB was to effectively, stay out of his way. 

From a contractual perspective, I find that there has been “no fundamental breach” as set out in the Caci Non-Life case referred to above, that made it impossible for the complainant to remain at work.

The burden of proof required in cases of constructive dismissal is a high bar for a complainant.  In this case, I find that the complainant has not made out the standard of the burden of proof required to demonstrate that the conduct of his employer was such that he had no alternative, but to leave his job.

I find that the complainant has not demonstrated that his employer behaved so unreasonably that he had to resign from his job.  Because of this finding, I have decided that this complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal, burden of proof