Complainant

Respondent

Anonymised Parties

Fitter

Haulage Company

Representatives

AnthonyWhelan

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-00022867-003

25/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022867-004

25/10/2018

The Complainant commenced working on the 3^rd of April 2017.  The employment ended on the 28^th of September 2018.  The Complainant was in receipt of a gross payment of €803.96 per week and as per his complaint form, he worked thirty-nine hours a week. 

The Respondent is involved in the transport of grain to mills.  It has four drivers and fourteen/fifteen trailers. 

CA/00022867/003:  constructive dismissal.

His case was that he was employed to work a thirty-nine-hour week but worked over forty-five hours a week.  He received telephone calls from the Respondent regarding work in the evenings and weekends.  This affected his family and social life.  He also made numerous calls on behalf of the Respondent and never received any payment towards his telephone bills. 

He explained that he was being bullied and harassed by the owner of the Respondent company and his daughter the transport manager to complete road safety authority records.  He had no training or qualification to do this.  The Complainant confirmed that it was verbally agreed from “day one” that this role would not involve completing RSA records.  Despite this agreement, this was expected of him. 

The Complainant told me that the harassment continued until he had no option for his own mental health but to leave the job.  The job had changed dramatically from welding to fitting tyres to wiring, mechanical work, ordering parts with his own phone, doing breakdown callouts in his own private vehicle.  He submitted he was not supplied with any equipment or tools.  He had to provide them himself.

His case was that he was put under immense pressure to complete all works singlehandedly as he was the only person employed in the workshop.

He did confirm that he considered leaving in 2017 because of the pressure of work he was under, the wages he was in receipt of were poor and it involved a lot of travelling to the Respondent’s place of work.

He confirmed that he was looking after articulated lorries and most garages/workshops would have at least two employees to do this work. He confirmed the work environment/facilities were very basic.  The Respondent did not have a pit jack.  Instead there was a metal girder across the pit with some pieces of loose timber and he was expected to use a bottle jack to raise up heavy lorries and trailers.  There was no gantry for lifting anything and there were no tools in the workshop. The Complainant confirmed that he raised this verbally with the owner of the Respondent. 

He advised that he was semi-literate, and he had only learned to write a few years ago.  Also, the Respondent expected him to do wiring and electrical repairs for which he was not qualified.  He was also expected to do welding and he was not hired for that role. 

He had to use his own personal van regularly, maybe every three months.  He used his own equipment and he submitted that it was “not normal” to be hired on that basis for this type of work.  He confirmed that the workshop on which he now worked had a recovery van.

The Complainant felt that there should be at least three people engaged by the Respondent for the workload he was expected to carry.  This would comprise mechanics and apprentices.  He felt that the work that involved tyre fitting should be carried out by a qualified tyre fitter and similarly welding should be carried out by a qualified welder.

He further submitted that he obtained an injury during work for which his employer would not allow him time off work to seek medical attention for his injuries.  This injury affects him to this day.  He also had difficulty in obtaining his P45.  

He gave further evidence that he was working on the day that his mother died.  He asked the company owner for time off but he was refused.  He was forced to work until 2.30pm that day.  It took him a further hour for him to get home.  His mother died at 4.30pm.  That was the 7^th of June 2018.  The Complainant explained that the Respondents treatment of him at that time “was the icing on the cake”.  The company owner wanted him to “finish stuff”.  The Complainant had kept a note of this in his diary. 

All issues regarding the overtime, holidays, use of personal phone, contact at home, contact outside of working hours, working conditions were raised verbally with the Respondent’s owner.

The Complainant strongly denied that he did any other sort of double jobbing or side nixers.  He confirmed that the only work he did was for the Respondent.

He confirmed that he did give two weeks’ notice of the termination of his employment.  He verbally told the Respondent owner on the 18^th of September 2018 and this was two weeks’ notice.

He said that he took two weeks “break” before he started his new employment.

He relied on both the contract test and the reasonable test.  In summary his case was that the duties he was asked to carry out were not within his remit.  He was unqualified to do them, and it was unreasonable for the Respondent to expect him to do this work. He was justified in leaving.  The issues raised by him were not petty or minor.  There were significant issues. 

CA/00022867/004

He did not receive a contract of employment showing his terms and conditions of employment.  He worked alone in the workshop.  He raised the lack of contract several times and was told that it would be sorted.

The first time he received any evidence of a contract was when it was provided to him by the WRC following an investigation of the Respondents.

CA/00022867/004

The Respondent’s case is that the Complainant was furnished with written terms of employment on the 10^th of May 2017 but that he refused to take it or sign it.  It was at a loss as to the Complainant’s assertion that he regularly requested a written contract and was not given it.  Its case was that the Complainant’s job description as a general garage mechanic was clearly outlined to him from day one.   Following discussions between the Complainant and the Respondent, it was agreed that the job description was “all fine” with the Complainant. 

CA/00022867/003

The Complainant was never asked or required to do work as required by the Road Safety Authority (RSA). He was required to provide the Respondent with a record of what work he had carried out to the vehicles he was maintaining. From those records, the Respondent’s transport manager completed the required RSA maintenance records.

The Respondents case was that the Complainant was accommodated in every possible way he required.  He was “treated like the Respondent’s own”.  He attended a family wedding and the Respondent owner attended the funerals of the Complainant’s mother and mother in law.

The Respondent felt that there were shortcomings in the Complainant’s attendance at work and failure to provide the records requested.  However, it did not issue any formal warnings to the Complainant as he was a good mechanic and because the Respondent had a degree of empathy towards him having suffered two close family bereavements within two weeks of each other. 

The Respondent disputed that the Complainant was required or worked forty-five hours per week. 

The Respondent disputed that the Complainant was telephoned in the evenings or at times when he was not required to work including weekends.  Any contact that was made was in a friendly manner and the Complainant never took issue whatsoever with same.  The Complainant was not required to make telephone calls on his own personal phone for the Respondent.  In fact, the Complainant was specifically asked not to make phone calls directly to suppliers but to use the internal ordering system that was being put in place by the transport manager.

The Complainant only raised two issues with the Respondent during his employment

- delay of his pay Christmas 2017 and

- request an increase in his salary. 

The Respondent explained that the Complainant was granted the increase of his salary with a fuel card for €50.00 per week.

The Respondent had no knowledge about an injury at work and disputed that they witnessed any such injury.

The Complainant never raised any issue or grievances with the Respondent either informally or formally through the grievance procedure. 

The Respondent submitted texts showing the pattern of communication between the parties.  The Complainant regularly would not turn in for work and when the respondent tried to contact him by phone, he did not answer though would later send a text saying that he would not be in.  The Respondent believes that the Complainant was engaged with other work on those days.  It submitted that the Complainant regularly came to work late and went home early.

The Respondent disputed that the Complainant resigned on the 28^th of September 2018.  On that date it was never informed by the Complainant that he had resigned.

On the 1^st of October 2018 the Complainant’s wife sent a text message to the Respondent to say that the Complainant would not be in work as he was going to a funeral.  A further text message was sent by the Complainant’s wife stating that she hoped the Complainant would be in work on the 2^nd of October 2018.  The Respondent telephoned the Complainant on the 2^nd of October 2018 and was advised by the Complainant that he would be in work the next day the 3^rd of October 2018.  The Complainant did not turn in for work on the 3^rd of October 2018 and the Respondent owner telephoned the Complainant.  The Complainant did not answer his phone.  On the 4^th of October 2018 the Complainant sent a text message to Respondent owner requesting his P45 and a list of days he received holiday pay. 

On the 8^th of October 2018 the Respondent wrote to the Complainant asking him if he wished to work out his notice setting out the holidays he had received and had been paid for.  The Complainant did not respond to this letter. 

It was the Respondent’s belief from conversations he had with the Complainant that the Complainant wished to secure employment closer to home to commence a diagnostic course in Belfast.  Its case was that the Complainant’s new position had been secured well before the 15^th of October 2018. 

In the latter part of his employment the Respondent became aware the Complainant was working at least one day per week for another employer. 

CA/00022867/003

Dismissal as a fact was in dispute and therefore it is for the Ccomplainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act and that such dismissal was unfair within the meaning of the Act.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”.

In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must be “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”.

Secondly, the Act at Section 1 addresses the issue of reasonableness. I must consider this issue either as an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, he is justified in leaving.

The Parties presented two varying descriptions of the workplace.  I have no doubt but that the Complainant was a hard worker.  I commend him on the efforts he has made to improve his life by learning to read and put himself forward for ongoing training. 

I must decide whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Acts.

I have carefully evaluated the written submissions made by the parties in the course of the hearing and have taken full account of the oral submissions made by the parties.

I note that the Complainant never raised any written grievance with the Respondent as regards any of the events which are submitted to have created the situation where he was left with no alternative but to resign from his employment.

A complainant who seeks to invoke the reasonableness test must also act reasonably by providing the employer with an opportunity to address whatever grievance he or she may have. The Complainant must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank Limited UD 474/1981).

In Beatty v Bayside Supermarkets UD 142/1987, in referring to the need to use the grievance procedures, the Employment Appeals Tribunal held: -

·         “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

I accept that there was not a written grievance procedure in place in the workplace.  There may have been a document in the office, but the Complainant was not aware of it.  SI 146 of 2000 applies in those circumstances for both sides. 

The parties had much interactions through text.  I have reviewed the texts and found their tone to be cordial. 

I note the Complainant’s text of the 22^nd September 2018.  It set out

“I’ll be in Monday.  I’m going to try for work near home because want to do degree in north in diagnosis. Chat you Monday”.

In all the circumstances, I cannot find that the Respondent’s conduct was unreasonable to the degree that the Complainant could be justified as a result in terminating his employment by way of constructive dismissal nor was the Respondent’s conduct such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of the Complainant’s contract of employment.

Accordingly, I must hold that the Complainant’s employment did not come to an end by reason of dismissal.

CA/00022867/004

I was furnished a written document which the Respondent said was provided to the Complainant on the 10^th May 2017.  The document is in a format that allows the Respondent to handwrite in required information to comply with the terms of the legislation.  Some areas were not completed. Such as the area on rate of remuneration.  This was left as it was and read

Your salary will be [insert amount] per annum.

I was furnished with another document which had been submitted to the WRC inspection services being a statement of the Terms of Employment as of the 1^st January 2015 which per-dated the Complainant’s employment with the Respondent.  It also contradicted some of the terms in the other document about hours of work.  It stated that the Grievance procedure was in the office. 

Overall, neither of these two documents comply with the requirements of the Terms of Employment (Information) Act, 1994. 

CA/00022867/003

I find that the within complaint is not well-founded.

CA/00022867/004

I find that the within complaint is well-founded and award the Complainant €2,500.00 in compensation for breach of the legislation. 

Constructive dismissal.  Terms and Conditions of Employment.