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-00025100-001

17/01/2019

The complainant was a lorry driver. He drove the lorry in the mornings and someone else drove that lorry in the evenings. In the morning the complainant would get the lorry back covered in bodily fluids snot, spits, food etc. There were food particles stuck to the steering wheel also. He complained about it verbally. He also put the remarks in the driver check list report. The respondent took the lorry and got it professionally cleaned. However, within a couple of weeks it started again. He didn’t log it in the driver check list this time. Instead he complained to management about it. He left messages for the GM but got no reply. He left the HR manager a message. Following that he got a call from the dispatch manager. He said they couldn’t sit in the lorry with the other driver to prevent him from doing what he was doing. The complainant said that he couldn’t drive the lorry in that condition anymore. He left his employment by sending a text stating “I am resigning”. The respondent replied by sending a ‘thumbs up’ emoji. The complainant states that he was given a handbook setting out the grievance procedure. He glanced through it He didn’t follow it because he wanted to sort it out without making a fuss.

The complainant got work in April. His earnings are less per hour. He doesn’t actually know that amounts. He gets no overtime and no meal allowance..

The complainant was given the revised employee handbook. It was sent to him by registered post in May, 2018. He did have the grievance procedure but he failed to invoke it. When he received the handbook he was asked to attend for a meeting with the General Manager. He did attend. During that meeting he was asked to sign a form confirming he had received the handbook. He refused to sign for it because he did not agree with the ‘confidentiality clause’. That does not marry with his evidence that he glanced through it. The complainant was fully aware of the respondent process for making such complaints and for his own reasons he decided not to follow it. In all the circumstances it was unreasonable for the complainant to terminate his contract of employment.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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”

7.—(1) Unfair Dismissal Act

Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the claimant. He must show that his resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 further performance”

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“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.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”

The complainant did have the grievance procedure. He, for reasons not set out, made the decision not to follow it. The first time he made a complaint by logging it in the drivers check list report. Following that, the respondent took action and had the lorry professionally cleaned. It was open to him to repeat that exercise, but he decided not to, instead he made the rather rash decision to terminate his own contract of employment.

In all the circumstances, I find that there was no breach of the complainant’s contract, it was not reasonable for him to terminate his own contract and he failed to exhaust the respondent’s internal grievance procedure before filing a claim with the WRC.

The complaint fails.

The complaint fails.