ADJ-00016409

Complainant

Respondent

Anonymised Parties

An Employee

A Recruitment Agency

Representatives

JohnJoynt

Scott JevonsIbec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00021291-001

23/08/2018

The Respondent is a Recruitment Company. The Complainant, who was a direct employee of the Respondent, was placed, in the role of Production Operative, at a Client site on 14 December 2017, on a fixed term Contract of Employment for 23 months.

The Complainant’s Contract of Employment terminated on 24 April 2018.

The Complainant submitted a complaint to the Workplace Relations Commission on 23 August 2018. The Complainant, submitted under the Industrial Relations Acts, was a claim of constructive dismissal.

Background to the complaint:

According to the Complainant’s submission, he was subjected to serious bullying and abuse by his Team Leader, in the Client company, on 24 April 2018. The Complainant provided a detailed account of the incident, which led to him becoming very upset. According to the Complainant’s evidence, the Team Leader got annoyed and told him that he should “be very careful that only for her and (sic) I wouldn’t have my job with my sick days”.

The Complainant stated that he broke down in tears before leaving the room. According to the Complainant, he sat in his car for a period of time trying to make sense of what had happened, before sending an email to his Supervisor stating the reasons for leaving the room.  The Complainant stated he received an email from the Respondent the following day seeking his confirmation that he had resigned.

In his submission, the Complainant proceed to detail the chain of events which then ensued between him and the Respondent which effectively culminated on 10 May 2018 when he received an email from the Respondent stating that they had accepted his resignation based on his email communication on 25 April 2018.

Substantive complaint:

In his original complaint form to the WRC, the Complainant set out his reasoning for making the complaint as follows:

1.       The manner and way in which his employment was terminated.

2.       The Respondent’s failure to afford him the facility of the grievance process.

3.       The Respondent’s complete ignoring of his intentions to solve the matter amicably with his proposals, which they had requested.

4.       The aggressive and intimidating approach taken at the second meeting, on 3 May 2018.

5.       The failure of the Respondent to deal with the abuse and bullying suffered and for not contacting the Client company about the incident at all.

6.       The “strong suggestion”, highlighted in an email from one of the Respondent’s management team, not to make any contact with the Client company.

7.       The Respondent’s acknowledgement of receipt of medical certificate and taking no cognisance of its content.

At the Oral Hearing, the following additional submissions were made by and on behalf of the Complainant.

The Respondent failed in their duty of care to an employee as set out in the Safety, Health and Welfare at Work Act, 2015. In this regard, the Complainant made specific reference to Sections 8 (1) and (2b) of the Act. The Complainant also referred to the medical certificate which was submitted and which indicated that stress had been caused to the Complainant as a result of the incident that took place on 24 April 2018.

It was submitted on behalf of the Complainant that, in an email dated 25 April 2018, a member of the Respondent’s management team (Ms A) erroneously stated, on foot of an email which she had received that day from an employee of the Client company, that the Complainant had resigned. It was submitted on behalf of the Complainant that he did not advise the Client employee that he had “resigned”, he had merely stated he had “left work”. Consequently, it was submitted on behalf of the Complainant that Ms A was attempting to make it seem like the Complainant had resigned. According to the Complainant’s submission, putting it to him that he had resigned equated to the unfair dismissal of the Complainant.

Further in this regard, the Complainant made reference to another email from Ms A, which was sent on 27 April 2018, in which she stated as follows: “As you are an employee of the Respondent, will request your attendance to complete an exit interview”. According to the Complainant, the reference “you are an employee” confirms that he was still employed by the Respondent on that date and could not, therefore, have left their employment prior to that date.

In further submission, the Complainant stated that the Respondent used “resignation” as an excuse to terminate his employment. According to the Complainant, this happened despite the fact that the Respondent had accepted comments made by him on several occasions, at two meetings, that he would not resign to bullying.

According to the Complainant’s submission, the Respondent failed to afford him the facility of the grievance process which he had accepted following it having been offered to him in an email from the Respondent (Ms A) on 3 May 2018.

In addition, the Complainant submitted that the Respondent ignored his proposals, which he stated were not demands, to resolve the issue amicably and which were forwarded to the Respondent in an email on 8 May 2018.

The Complainant submitted that the Respondent made no attempt to investigate the ongoing bullying by an employee of the Client company. In this regard, the Complainant noted an email from the Respondent’s On-site Program Manager, (Mr C), dated 22 June 2018, in which it was stated that: “as you were employed by [the Respondent]. I strongly suggest you do not contact anyone from the Client Company to discuss these or any other matters”. According to the Complainant, this was an attempt by the Respondent to thwart any effort he (the Complainant) may have made to seek redress directly from the Client company.  According to the Complainant’s representatives, there was a clear inference in these comments that nothing would/had been done by the Respondent, as indeed they believed to be the case.

In this regard, the Complainant also made reference to comments made by Mr C at the meeting on 3 May 2018 when he stated that the Client company’s end was no longer relevant. According to the Complainant, Mr C was trying to give the disingenuous impression that an investigation had been undertaken. It was also submitted that Mr C adopted an aggressive and intimidating approach towards the Complainant at the conclusion of the meeting on 3 May 2018.

Background to the Respondent:

It was submitted that the Respondent has been providing agency staff on site to the Client, in the within case, since 2016, under a managed service agreement. According to the Respondent, the services provided to the Client include account management, onboarding and offboarding. The Respondent further submitted that the number of agency staff placed with the Client fluctuates from time to time depending on the latter’s requirements.

Background to the Complaint:

The Respondent submitted that the Complainant was employed from 14 December 2017, on a fixed term Contract of Employment, in the capacity of a Production Operative. It was further submitted that the Complainant’s employment terminated by reason of his own resignation in correspondence dated 24 April 2018.

Respondent’s arguments:

The Respondent submitted that they neither acted unreasonably, nor did they breach the Complainant’s terms and conditions of employment such that the Complainant could legitimately resign and seek relief for constructive dismissal.

According to the Respondent, they have demonstrated that they acted appropriately at all times in addressing any concerns the Complainant raised regarding his employment. It is further submitted that the Respondent issued the grievance procedure numerous times, requesting the Complainant to confirm if he wished to make a formal complaint. It was further submitted that the Complainant only finally indicated his intention to utilise the grievance process on 8 May 2018. According to the Respondent, the Complainant was not an employee at this time, as he had already resigned and had ignored offers around returning to the role.

The Respondent submitted that the Complainant was unreasonable in failing to return to work and in failing to engage with the Respondent to address any outstanding complaints. In this regard, the Respondent pointed to an email dated 3 May 2018, in which the Complainant was informed that the Respondent would return him to the role. According to the Respondent, the Complainant did not respond to the specific question but continued to threaten the Respondent with reference to his legal representation.

In support of their position in this regard, the Respondent referred to the cases of Conway v Ulster Bank and Duane v Masonry Fixed Services Limited. In particular, the Respondent submitted that it cannot be said that the Complainant acted fairly and in good faith during or around his allegation and correspondence. According to the Respondent, they made clear efforts to return the Complainant to duties and investigate the matter, if desired, with a view to coming to a fair and reasonable resolution for all parties, where one was required.

According to the Respondent’s submission, it became clear from the Complainant’s proposal, as set out in his email dated 8 May 2018, that he was making demands out of the reach and consideration of the Respondent. It was further submitted by the Respondent that it was of particular concern to them that the Complainant was so financially motivated in his expectations arising from any investigation of the allegations. In support of this view, the Respondent referenced the following demand from the Complainant’s correspondence: “compensation for loss of earnings while out of work and the distress caused”.

The Respondent submitted that, taking together the Complainant’s initial resignation to the Client, as opposed to the Respondent, his excessive proposals for remedying his allegations (specifically two forms of compensation) and his threats visit the legal representation, complaints to the WRC, Tusla, and the Client, it was clear that the Complainant was disingenuous around his intentions on fair resolution. According to the Respondent, the Complainant was, in reality, continuously trying to force the Respondent into impossible concessions.

According to the Respondent, it was not factual to state that the Complainant was forced to resign.  In support of this view, the Respondent submitted that the Complainant resigned on 25 April 2018, his complaint came subsequent to this, he did not respond to offers of returning to the job and he delayed raising a grievance until well after he concluded his employment.  The Respondent submitted that the Complainant’s intentions of resolving any perceived allegation and staying within the role and employment are not evident in his actions and, therefore, he could not have been constructively dismissed, but resigned.

Conclusion:

In conclusion, the Respondent submitted that, in light of the foregoing arguments, they respectfully request the Adjudication Officer to reject the Complainant’s claim in its entirety.

On the basis that he had less than the 12’ months service, required under Section 2 (1) (a) of the Unfair Dismissals Act, in order to avail of the protections provided by that Act, the Complainant referred his complaint to the Workplace Relations Commission under the Industrial Relations Acts.

Section 13 Industrial Relations Acts, as amended, states as follows:

13.—

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to an [Adjudication Officer].

(3) (a) Subject to the provisions of this section, an [Adjudication Officer] shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute,

Therefore, in line with the above, I proceeded to investigate the Complainant’s dispute and to make recommendations, if appropriate or necessary, arising from that investigation.

Background to the complaint:

The first step in conducting the investigation into the dispute was to establish the background to and, in particular, the timelines involved in the lead up to the complaint. Having carefully considered all of the evidence adduced, I am satisfied that the following chronology represents an accurate account of the events.

·         24 April 2018 –

Approximately one hour and 40 minutes prior to the end of his shift, the Complainant emailed his Supervisor on site (an employee of the Client company) advising, inter alia, that he had “quit”, as he “cannot continue to work in the room”, where he was “accused of bitching” andwas “told that all problems on the line are his fault”.  In conclusion, the Complainant apologised for his unprofessionalism but stated that he would not “be shouted to or talked to like that”. He also indicated that if there were any issues in this regard, he had the whole incident recorded on his phone.

·         25 April 2018 –

The Supervisor, who had received the email from the Complainant the previous day, referred the matter the Respondent for their attention.  An employee of the Respondent (Ms A), having tried and failed to contact the Complainant by phone, send him an email advising that she had been informed by the Client that he had left work the previous evening, having resigned. Ms A requested the Complainant to confirm, by email, that he had resigned.

The Complainant responded to Ms A by email in which he confirmed that he had resigned. He also provided some detail in relation to the altercation, with one of the Client’s employees, which led to his decision to resign. The Complainant also requested his P45 and payment of all outstanding remuneration, including holiday pay.  In conclusion, the Complainant stated: “I am yet to meet my solicitor for legal advice so I’m unsure whether I will take the matter further”.

In response, Ms A thanked the Complainant for his email and indicated that she would follow up with him shortly.

·         27 April 2018 –

In a phone call, subsequent to the email correspondence of 25 April, Ms A requested the Complainant to attend meeting on Monday, 30 April 2018. In an email sent to Ms A on 27 April 2018, the Complainant requested “under legal advice” details as to the purpose of the meeting scheduled for 30 April.

Ms A responded by return and advised the Complainant that, as he had left his employment without notice, it was part of the Respondent’s procedure to offer exit interviews in such circumstances and that the meeting scheduled for 30 April was for this purpose.

·         30 April 2018 –

The Complainant attended the above referenced meeting, which was also attended by a colleague of Ms A.

·         2 May 2018 –

The Complainant sent an email to Ms A, thanking her and her colleague for meeting with him on 30 April. Referring to “the events that unfolded on Tuesday, April 24”, the Complainant stated that it would be in everybody’s interest that the matter be resolved “without involving the external relevant authorities and following a legal route but if I am left with no alternative to seek redress then let nobody be in any doubt that I am totally committed and determined to get justice for the way I have been treated.”  The Complainant concluded by stating that he required the matter to be dealt with within seven days or he would have no alternative but to pursue the matter further. The Complainant stated that, in the meantime, he was holding off submitting a complaint to WRC and setting a legal action in motion pending the outcome of the Respondent’s investigation.

Ms A responded by return email, indicating that she will follow up with the Complainant shortly. In a subsequent email later that afternoon, Ms A requested the Complainant to attend a meeting with her and a colleague, the following morning at 10:00am.

·         3 May 2018 –

A meeting took place with the Complainant and was attended by Ms A and the Respondent’s Program Manager (Ms B). At this meeting, the Complainant was asked how he wished to proceed and if he wanted to return to the role at the Client site. The Complainant was informed that the Client had conducted their own investigation. In response, the Complainant refused to provide any indication as to what he wished to do in order to progress the matter, until he received further advice. The meeting concluded on that basis.

In an email sent at 11:38, Ms A requested the Complainant to confirm, by Wednesday, 9 May 2018 if he wished to raise a formal grievance. In this email, Ms A also informed the Complainant that, as he had resigned and requested his final pay, all outstanding payments would be included in the payslip he would receive that week. However, Ms A went on to state that if the Complainant wished to return to work this payment could be adjusted and his employment reinstated.

The Complainant responded in an email, by return, stating as follows: “….kindly note: (1) at no stage did I tender my resignation  (2) The matter will be dealt with from now on by my legal representative and they will be contacting you shortly”.

Ms A responded to the Complainant, thanking him for his email and reminding him that he still had until 9 May 2018 to confirm if he wished to take a formal grievance.

·         7 May 2018 –

The Complainant sent an email to the Respondent (Ms A), in which he stated that, regarding the opportunity to raise of a formal grievance,  he had been  “advised to avail of it in the interest of best practices and protocols”. In addition, the Complainant advised that he was, at that time, in a position to offer his proposals in order to resolve the matter amicably  and would forward same by email, if the Respondent so wished.

·         8 May 2018 –

Ms A reply to the Complainant, acknowledging his intention to submit a formal grievance  and enclosed a copy of the Respondent’s Grievance Policy. In addition, Ms A requested the Complainant to forward the proposals referred to in his email of the previous day.

The Complainant sent an email by reply which set out his proposals to resolve the matter, regarding the incident of 24 April 2018, as follows:

1.       Unconditionally relocation to a specific building/location on the Client site, with the same working conditions as suggested at the initial meeting with the Respondent during which a of change of room was mentioned as a possible resolution.

2.       Compensation for loss of earnings while out of work and the distress caused.

3.       A guarantee that this incident would not reflect on any present and future employment prospects with the Respondent or the Client.

4.       An apology for the distress this unwarranted, belligerent incident has caused. a

·         10 May 2018 –

The Respondent (Ms A) emailed the Complainant and advised that, based on his email of 25 April 2018, in which he confirmed his resignation, the Respondent had accepted that resignation and any outstanding holiday pay/P45 issue to the Complainant in due course.

·         13 June 2018 –

The Complainant sent an email to the Respondent advising that, in the absence of any communication regarding the grievance process, he was taking the following actions:

1.       Filing a complaint with the Workplace Relations Commission in relation to the manner in which his employment was terminated.

2.       Filing a complaint with Tusla in relation to the ongoing bullying and abuse he was subjected to whilst employed at the Client site.

3.       As the senior management within the Client company were never made aware of the incidents, he would be bringing this and other serious matters of misconduct of their attention at a meeting in the coming weeks.

·         23 August 2018 –

The Complainant submitted his complaint of constructive dismissal, under the Industrial Relations Acts, to WRC.

Assessment of substantive complaint:

While the Complainant has submitted his complaint as a constructive dismissal claim, he made significant submission during the hearing of his case that he had not in fact resigned and that the Respondent was erroneously trying to categorise the termination of his employment as a resignation.

Notwithstanding the fact that the Complainant’s complaint is submitted as a “constructive dismissal” claim, albeit under the Industrial Relations Acts, due to his lack of service preventing him availing of the protections of the Unfair Dismissal Act, I considered it appropriate to review the evidence in an effort to determine the precise nature of the termination of the Complainant’s employment.

The evidence adduced shows that the situation commenced on 24 April 2018, when the Complainant sent an email to his Supervisor, at the Client company where he was working, advising that he had “quit“, as a result of an altercation that had occurred at work that day. On reviewing this correspondence in detail and, in particular, the other references, contained therein, such as, to not having provided notice, I find it difficult to conclude other than that the Complainant had quit or resigned his employment.

It also appears from the evidence that this interpretation of the Complainant’s email of 24 April 2018 was shared by the recipient but, more particularly, by the member of the Respondent’s management team (Ms A), to whom the matter was immediately and directly referred by the Client company, on 25 April 2018.

Following a number of attempts by the Respondent’s representative, Ms A, to reach the Complainant by telephone on 25 April 2018, she sent him an email stating , as follows: “I understand from [the Client] that you left work yesterday Tuesday March (sic) 25 after having resigned”. In this correspondence Ms A requested the Complainant to: “Please confirm by email that you have resigned”.

In an immediate response, by email, the Complainant stated: “I did yes”. I am satisfied that any objective reading of this response, in reply to a clear request for confirmation that he had resigned, could only conclude that the Complainant was confirming his resignation.  The evidence shows that the Complainant then went on to give the reason why he had taken such action, i.e. resigned.

The position is further confirmed, in my view most conclusively, when the Complainant states, towards the conclusion of his email, as follows: “ I wish to obtain my P45 and my pay to date inclusive of my holiday hours please. I have yet to meet my solicitor for legal advice so I am unsure whether I will take the matter further”.

Taking all of the above into consideration, I am satisfied that, as of his email of 25 April 2018, the Complainant had informed the Respondent that he was resigning from his employment. It is clear from the evidence adduced, that the Respondent was of a similar view, as they proceeded to process the Complainant’s termination as a resignation. This is confirmed by an email sent to the Complainant on 27 April 2018 inviting him to attend an exit interview, which stated as follows: “As you are an employee of [the Respondent], we request your attendance to complete an exit interview. You left without notice and it is part of our procedure to offer an exit interview”.

The Complainant’s contention that the phrase “you are an employee’ is evidence that he had not resigned and/or could not have left the Respondent’s employment prior to the date of the email, i.e. 27 April 2018, is noted. However, I do not accept this contention. The email is clearly inviting the Complainant to attend an “exit interview“, which only take place when employees are leaving or have left an employment. In that context, to suggest that the tense of the verb used should be taken as confirmation of the status of the Complainant’s employment, is not credible.

Based on the evidence presented, the next reference to the Complainant’s employment status is found in an email from the Respondent (Ms A), on 3 May 2018, which states as follows: “As you had originally informed us that you wished to had (sis)resigned, the final pay process was initiated and you will note that you will have received final holiday pay in this week’s payslip. If you wish to return to work we can adjust this and reinstate your employment.” 

The Complainant responded to the above, by returned, stating that “At no stage did I tendered my resignation”.  This is the first time that the Respondent was put on notice that the Complainant was contesting the view that he had resigned. However, rather than indicating a wish to return to work, as offered in the Respondent’s email, the Complainant advised the Respondent that the matter was now in the hands of his legal representatives, who will be in contact shortly.

The evidence presented shows that, in an email submitted on 8 May 2018, the Complainant set out his proposals to resolve the matter. It is clear from the Respondent’s submission that, rather than seeing these as “proposals” they considered them as “demands” which were designed to force the Respondent into impossible concessions.  On that basis, the Respondent communicated with the Complainant on 10 May 2018, advising him that, based on his communication on 25 April 2018, they were accepting his resignation.

Taking all of the above into consideration and in a context where there is no evidence that the Respondent terminated the Complainant’s employment, I can only conclude that said termination took place by way of resignation arising from the Respondent’s email communications of 24 and 25 April 2018. On that basis, I proceeded to consider the Complainant’s claim for constructive dismissal.

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”.

In the light of the provisions of Section 1 of the Unfair Dismissal’s Act and in the context of the various authorities as set out above, it is clear that the Complainant, in the within case, must demonstrate that the Respondent has behaved so inappropriately and/or unreasonably that they were left with no option but to resign.  In addition, the Complainant is required to demonstrate that their behaviour was reasonable and appropriate in all of their interactions with the Respondent in relation to the issues which constituted the dispute between them.

The first thing to be noted when considering the Respondent’s behaviour is that the act of resignation came before there was any involvement on their part from which the Complainant may have concluded was so inappropriate and are unreasonable that he had to tender his resignation. As set out earlier, I am satisfied that the date of the Complainant’s resignation was 24 April 2018 when he left his employment location and, shortly thereafter, sent an email to his Supervisor advising that he had quit, without notice.  The resignation was confirmed to the Respondent on the following day, 25 April 2018, when the Complainant also sought his P45 and any/all outstanding payments due to him arising from his employment.

While it is clear that the Complainant was upset arising out of an interaction he had with the Team Lead, who was an employee of the Client company, I do not accept that this provided reasonable grounds on which to conclude that his employer, the Respondent, had in any way behaved or acted inappropriately up to that point or indeed that they might do so at a future point in time. In a context where, at the time the resignation was submitted, the Respondent was completely unaware of the alleged incident, which the Complainant clearly stated was the reason for tendering his resignation, I do not accept that this could be considered to provide grounds for a claim of constructive dismissal.

Notwithstanding the position as set out in the previous paragraph, I also considered the Respondent’s actions/behaviours in the period after the Complainant submitted his resignation. Having carefully reviewed all the evidence adduced in that regard, I find none which would support the allegation that the Respondent acted or behaved in a manner so as to leave the Complainant with no option but to tender his resignation. In all of their interactions with the Complainant, in the period after he submitted his resignation, I found the Respondent to have been balanced and reasonable in the manner in which they acted/behaved.

This view was influenced by the fact that, despite the Complainant having clearly submitted and subsequently confirmed his resignation, the Respondent was still willing to reinstate his employment. The view was further confirmed by the Respondent’s willingness to make the grievance procedures available to the Complainant despite the fact that he had already resigned and that it took him until 7 May 2018 to confirm he would submit a grievance and, it would appear, only deciding to do so then on external advice.

Finally, I considered the scenario in which the Respondent finally brought the matter to a conclusion, on 10 May 2018, when they confirmed they had accepted the Complainant’s resignation and would issue his P45 and make all outstanding payments.  This decision occurred in the context of what the Complainant refer to as his “proposals” for resolving the matter, but which the Respondent considered as “demands” that were impossible for them to concede on.

Having carefully considered the four conditions submitted by the Complainant as a means of resolving the matter between the parties, I find they were not proportionate to the original matters which led to the dispute, not conducive to providing an amicable resolution of the issues and, more importantly, not consistent with the position of an employee whose focus or priority was to preserve their employment with the employer. In that context, I do not find it surprising the Respondent concluded that a reasonable and amicable resolution of the matter was no longer achievable and, as a result, decided to accept the Complainant’s resignation as originally submitted.

In cases of constructive dismissal, the behaviour of the employer is the central issue and requires detailed assessment. However, the behaviour of the employee must also be considered.  In the within case, I find that, by his actions and behaviours, the Complainant contributed significantly to the termination of his employment with the Respondent. Having carefully considered all the evidence adduced I find that the Complainant’s behaviour, right from the initial incident on 24 April 2018, was confrontational and adversarial in tone nature.  

In a context where the evidence suggests that the Respondent was willing to address the matter and reinstate the Complainant, I am strongly of the view that the Complainant’s behaviour/actions were such that they influenced the Respondent to the extent that they considered his (the Complainant’s) intentions in relation to resolution of the matter to be disingenuous. Based on the evidence presented, I’m satisfied that it was not unreasonable for the Respondent to reach such conclusions.

Taking all of the above into consideration and having carefully considered all of the submissions made by and on behalf of the respective parties, I conclude that the Complainant has failed to demonstrate that the Respondent was in breach of either the contract or the reasonableness tests, as applied in constructive dismissal cases.  On that basis, I find that the necessary grounds did not exist which would have supported the Complainant’s decision to resign his employment, on the basis that he had no alternative.

Consequently, I find that the Complainant’s claim of constructive dismissal is not well founded and is, therefore, rejected.

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 rejected. Consequently, no recommendation is required.

Industrial Relations Act

Constructive Dismissal