ADJ-00019157

Complainant

Respondent

Anonymised Parties

A Bookman / Collection Operative

A Cooking Oils Company

Representatives

RonanKilleen,Solicitor of Killeen Solicitors

Anne-Marie Burke of  IBEC

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-00024991-001

14/01/2019

The issues in contention concern an alleged Constructive Dismissal of a Bookman/Operative by a Catering Oils Company.

The Complainant commenced employment in September 2017 as a Cash Bookman – effectively collecting cash from Customers while delivering /collecting product. In August 2018 the Respondent made a series of unlawful deductions from the Complainant’s wages regarding Holidays and Cash Collections. Monies collected from Customers and not paid in at required times were raised as big issues against the Complainant. He had made all efforts to lodge the monies and the Respondent was being unreasonable. Issues relating to a Bill for a Company Mobile phone, he had been issued with were also in contention.  Matters proceeded in dispute between the Parties but on the 12^th October 2018 a comprehensive Arrangement to set matters straight was made. The Respondent failed to honour their side of this Agreement. Accordingly, the Complainant felt that all trust and confidence with his employer was gone and he had no reasonable choice but to resign. The Standard Legal references and precedents regarding Constructive Dismissal cases were advanced by the Complainant. It was clearly argued that the actions of the Respondent employer had been unreasonable and such a fundamental breach of the employment contract that a constructive resignation was the only option.

The Complainant was employed in a position of considerable trust particularly regarding cash collections being lodged promptly in keeping with accepted practices. On the Friday 10^th August 2018 he failed to lodge his collection (€460), contacted the Respondent to say he would lodge on the 15^th but in effect did not lodge until the 3^rd September. On Monday the 15^th August the Complainant did not attend for work and proved very difficult to contact. Holidays for the period 20^th to the 31^st August were not approved as the Complainant had not accrued the required leave. However, the Complainant was physically absent on disputed Holidays for this period.

An issue also arose in regard to excessive usage of a Company mobile phone that had been supplied to the Complainant as part to his work kit. Very substantial data download charges, (in total some € 615.24) outside of Office Hours were evident from the phone bills.

As the Respondent could not make satisfactory contact with the Complainant for most of August and the collection monies outstanding were now quite large the Respondent stopped wage payments to the Complainant. A further Non-Lodgement of Collections issue arose in early October in the sum of €235.

At this stage the Complainant’s Solicitor was fully involved and extensive correspondence was being exchanged between the Parties. The HR Manger, Ms Xa, and the Complainant’s Solicitor agreed an arrangement on the 12^th October to address all outstanding issues of Wages and Holiday Pay, the lodging of outstanding Collections and a Deduction Plan for the mobile Phone bills. This was being put in palce and any arrears of pay/Holiday Pay was due to be paid in the payroll run paying out on the 26^th October.

However, in a phone call with the Depot Supervisor, Mr Xb, on late Friday the 19^th October, the Complainant resigned his employment – “would not be coming back to work”. This alleged Resignation became the matter of correspondence with the Complainant’s Solicitor -it was unclear if the Complainant had actually resigned. The Complainant was certified sick for the week of the 22^nd October. A suggestion was made the Complainant would be back on the 29^th October.

On Monday the 29^th the Complainant did not show up for work and his resignation was effectively now accepted as a fact. By letter of the 2^nd November 2018, from the Complainant’s Solicitor, the ending of employment was confirmed.

In summary the Respondent maintained that they had acted extremely reasonably regarding the non-lodging of outstanding cash, had made a very comprehensive arrangement with the Complainant’s Solicitor on the 12^th October and were in the process of paying all monies due the Complainant, including the disputed August Holiday Pay. The Deduction facility for the Mobile Phone was lenient and not in any way a hardship. The Claim by the Complainant that the monies should have been paid on the18th October, pay day immediately following the 12^th, was an Accounting impossibility. This had been explained to all involved.

In Legal Submissions the Respondent pointed to the standard Contract and Unreasonable Behaviour Tests as usually applied in Constructive Dismissal case. Under both headings the Respondent maintained that no sustainable case of Unfair Constructive Dismissal could arise.

An important point was the fact that the Complainant could easily have come back to work on the 29^th and utilised all internal Company grievance procedures. This had been pointed out to him in correspondence with his Solicitor.

In addition, the Complainant was professionally advised from an early stage.

3:1        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. 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 Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The Tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

Legal Precedents not withstanding each case had to stand on its own facts and evidence and I will now consider these.

3:2           Consideration of the Evidence.

It is useful to consider this under the Headings of firstly, Breach of Contract and secondly, Unreasonable Behaviour.

3:2:1        Breach of Employment Contract

Th fundamental issue here is usually always the Payment or Non-Payment of Wages/Holiday Pay on the Employer side and/or a failure to carry out basic required tasks on the Employee side. In this case there was an almost perverse negative equality of arms as regards the contract.

The Complainant did not lodge his cash collections on two occasions and ran up a major mobile phone bill on non-company business. The Respondent paced a stop on wages due which would be a serious difficulty regarding agreed or not agreed decuctions under the Payment of Wages Act,1991. However, no proceedings were taken under that Act. On balance however when matters were clarified, and the monies lodged the Respondent paid the wages due for August and was in train to pay the August Holidays at the date of the verbal resignation. The Complainant did not at any time deny that he should have made the required lodgements on time. Many other Employers would not have been as lenient in their responses here as the Respondent.

On balance and having considered the facts I did not come to the view that there was a fundamental breach of the employment contract by the Respondent employer such as to justify a Constructive Dismissal.

I was also of the view that the agreed Arrangement of the 12^th October 2018, prior to any resignation, could be said to have remedied any Legal deficiencies in this area.

3:2:2       Unreasonable Behaviours.

The evidence both oral and written pointed to the fact that much disputed water had passed under the bridge leading up to the Arrangement of the 12^th October 2018. The Arrangement was comprehensive and agreed between Ms. Xa from HR and the Complainant’s Solicitor. It was presented in Written Evidence.  Considerable additional written evidence of an extensive correspondence between the Parties, principally between Ms. Xa and the Complainant’s Solicitor, was also given to the Hearing.

Ms Xa, the HR Manager gave good oral evidence on the background to the Arrangement and the practical issues involving payroll weeks. There was no suggestion in her evidence of any desire to get rid of the Complainant. She was available for cross examination by the Complainant Solicitor.

Where the Parties fell out was the issue of the Payment date for the outstanding monies. The Complainant maintained that it had been agree that it would be on or about the 18^th and the Respondent pointed to Payroll issues and that it would be on or about the 26^th.

In his Oral evidence the Complainant explained that he had expected to be paid the monies on the 18^th and got quite annoyed when he did not. He felt that he was being “messed around” by the Respondent and in frustration had told his Supervisor (Mr Xb) on Friday the 19^th that he was “quitting” /not coming back.

In the exchanges with his Solicitor in the following week it was clear that the option of resuming on the 29^th October was never ruled out by the Respondent. Turning Up/Not Turning Up on the 29^th of October for work was to become, effectively, the litmus test of the Complainant’s intentions. He did not turn up for work.

On balance I could not see any evidence of what is legally called “Egregious Mis Behaviours” on the Part of the Respondent sufficient to justify a Constructive Dismissal. There had been great forbearance and patience on the Respondent’s part regarding the non-lodging of cash collections. Another employer might have been considerably less tolerant.

The Arrangement of the 12^th October was a good document agreed with a Legal Advisor, it had covered all the disputed points and getting annoyed to the point of resigning over a payment date was, in my view, unjustifiable employee behaviour

3:3        Summary Conclusions.  

The Standard Legal tests for a constructive dismissal of Breach of Contract and Unreasonable Behaviour have been looked at and considerable Oral and Written evidence considered in this context.

My final and definitive view is that the Arrangement of the 12^th October was a good outcome made with Legal Advice. The actions of the Complainant (Verbal exchange on the 19^th and non-return to work on the 29^th) post this Arrangement were hard to understand. In this context I could not see how a justifiable claim for Constructive Dismissal could be successfully grounded.

Accordingly, the claim is set aside as Not Well Founded.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section Three above for detailed reasoning.

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

CA-00024991-001

Claim for Constructive Dismissal under the Unfair Dismissals Act ,1977 is set aside as Not Well Founded.