Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Services Provider

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-00027370-001

29/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00027370-002

29/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00027370-003

29/03/2019

The complainant commenced employment as a cleaner with the respondent, a cleaning services provider, on 22 January 2018. Her employment ended on 26 March 2019. The complainant was paid a monthly salary of €780.00 and worked 20 hours per week. The complainant lodged a complaint with the WRC on 29 March 2019, calcimining she had been constructively dismissed.

The complainant provided a detailed written submission.

The complainant submits that on the 15th March 2019 she received a phone call from the respondent telling her that she was not to come to work on the 19th March 2019. The complainant submits that she was given no reason or explanation, nor was she invited to the office to discuss the matter. When she enquired why, she did not get an answer. No alternative place of work was offered to her.

On 19th March 2019, the complainant arrived at her work as normally scheduled, she assumed a supervisor would be present. The complainant then learned that another person (cleaner) had been there since 7.00AM. Her supervisor then arrived and told the complainant to leave the building, no explanation was given. The complainant was told she was trespassing and that the Gardai would be called to escort her off the premises. Confused, the complainant waited for the Gardai to arrive as she felt very embarrassed and humiliated.

The complainant submits that the respondent had failed to follow its own procedures in not discussing issues which had arisen a few days beforehand. It was only when she had been escorted off the site by the Gardai that she received a message from the company’s HR section inviting her to a meeting to discuss these issues.

The complainant awaited an official invitation to a meeting to discuss her performance or the issue that had arisen on 19th March 2019, but nothing was forthcoming. After being ignored for over a week on 26th March 2019, the complainant sent in a notice of her intention to terminate her employment; she heard nothing in response.

The complainant submits that the respondent failed to follow proper internal procedure and breached the principal of natural justice. The complainant lost trust and confidence in her employer in particular when she was subjected to being escorted by a Garda from her place of work.

In direct evidence at the hearing the complainant stated that she did not reconsider her position when contacted by the respondent as she felt once she had been escorted off the site she had been dismissed.

The complainant also stated that when the issue arose on 19th March 2019, the respondent did not handle it correctly, matters should have been dealt with differently.

The complainant agreed that it was her decision to wait for the Gardai to arrive before she left the premises where she had turned up for work.

In closing, the complainant submitted that she was given no explanation why she should not go to work, she was just told not to go. The respondent did not provide any alternative work for her.

The complainant submits that it was the respondent who called the Gardai and accused the complainant of trespassing, these defamatory accusations of trespassing made by a person who had no authority to do so constitutes reasonable grounds for constructive dismissal.

In addition, the complainant puts forward that the action of the respondent was exaggerated and outrageous. Instead of inviting the complainant to the office to discuss the matter, the respondent decided to call the Gardai on her.

In the circumstances, the complainant believes she has satisfied the requirements to prove constructive dismissal.

The respondent provided a detailed written submission.

The respondent rejects the complainants made by the complainant. The respondent submits that the complainant resigned from her employment when she was removed from the site even though she was offered suitable hours in another location in the area. She was given seven days to reconsider her decision to resign but she did not seek to meet with the respondent to discuss the matter and ultimately the respondent accepted her resignation.

The complainant submits that there is no notice payment due as the complainant terminated the contract of employment.

By way of background, the respondent submits that the complainant’s contract of employment states that she can be required to work at any of the respondent’s client’s sites.

The particular client had been unhappy with the complainant’s work and had relayed this to the respondent. Following an investigation, the complainant was issued with a verbal warning on 14th February 2019.

On 13th March 2019, the complainant’s supervisor was called to a meeting with the client. He was informed that the cleaning on site was still not up to standard and that complaints had been received from tenants who wanted a different cleaning company to be offered the contract.   The supervisor was asked to remove the complainant from the site and replace her with another cleaner.

The respondent submits that on Friday 15th March 2019, the complainant’s supervisor contacted her and told her that she would no longer be working on the particular site. She was informed that another site would be found for her with the same hours and in a location that suited her. In the meantime, she would be paid her normal hours until the new arrangement was in place. At 15.03 the complainant texted her supervisor informing him that she would be going to work in the particular site as normal until her 20 hours were replaced somewhere in the locality.

The respondent submits that on Tuesday 19th March 2019, the complainant contacted her supervisor informing him that she was at the particular site and was about to start work. There was an exchange of texts and the complainant was informed that she must vacate the site or the Gardai would be called. When the Gardai arrived at mid-day the claimant left the premises.

Following this on 26th March 2019, the respondent received an email from the complainant informing them that she was resigning her position with immediate effect won the grounds of constructive dismissal. She requested all payments due and her P45 as soon as possible.

On 27th March 2019, the respondent wrote to the complainant requesting she re-consider her decision to resign. Attached to this email was a copy of the company Grievance Policy. The email also stated that unless the complainant contacted the company within seven days the respondent would have no option but to accept her resignation.

On 29th March 2019, the complainant sent an email to the respondent stating that her trust and confidence in the company had been shattered and she would not reconsider her decision to resign.

In direct evidence at the hearing the respondent stated that it was never their intention to terminate the complainant’s employment, but she did not engage with them. The respondent also stated that it was the complainant who said she would not leave the site until the Gardai arrived. The respondent also put forward that it was the complainant who stopped taking calls from her supervisor.

The respondent believes that the complainant has failed to substantiate her case that she had no other option other than resign, as is required to prove a constructive dismissal case.

In concluding, the respondent submits in a constructive dismissal case the burden of proof is on the complainant to prove that the respondent’s behaviour was unreasonable or breached the fundamental principles of the employment contract leaving her with no option but to resign.

In this case, according to the respondent, the complainant acted unreasonably; she was told not to go to a particular client site, she refused to follow that instruction. She was asked to come to the respondent’s office to discuss her concerns, but she did not take up this opportunity. She did not lodge a grievance as was her right.

The respondent submits that the complainant’s resignation email was sent a week after the events of 19th of March, demonstrating that she did not take her decision in the heat of the moment.

Definition of Constructive dismissal.

Sec 1(b) “the termination by the employee of his/her contract of employment with his/her 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”.

 In a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The complainant needs to demonstrate that they have no option but to resign. In addition, there must have to be something wrong with the employer’s conduct.

 In UD 1146/2011 the EAT held “in such cases 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”.

 It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve their grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd 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”

 In Tierney v DER Ireland Ltd UD866/1999 the EAT stated, “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

 In the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

 The EAT in Donnegan Vs Co Limerick VEC UD828/2011 it 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”. Also the respondent’s conduct was “not so unfair or so damaging to the claimant’s rights and entitlements that she had no option but to resign her position”

The EAT in Donnegan Vs Co Limerick VEC UD828/2011 it 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”. Also the respondent’s conduct was “not so unfair or so damaging to the claimant’s rights and entitlements that she had no option but to resign her position”

 In Murray v Rockavill Shellfish Ltd [2002] 23 ELR 331 the EAT stated, “It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

 The Labour Court in UDD 1635 Mary Kirrane v Barncarroll Area Development Co Ltd stated, “Where constructive dismissal is contended for it is for the person making the claim to establish that the behaviour of the employer was such as to leave the appellant no alternative but to terminate the employment or that the employer’s behaviour has fundamentally undermined the employment relationship. The person claiming constructive dismissal has an obligation to access available grievance procedures in a course of attempting to deal with whatever situation has led to consideration of termination of the employment”.

 In McCormack v Dunnes Stores UD 1421/2008: the EAT 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 order to succeed with a constructive dismissal case, the complainant must establish that the employer’s conduct/behaviour was such that the employee had no option but to resign their position. They must also ensure that they have given the employer an opportunity to deal with the allegation/ grievance before the decision to resign is taken. They must be able to assert their entitlement and reasonableness to resign their position.

 In this case I find that the Complainant did not raise a grievance. 

I find she unreasonably, refused to reconsider her position when requested to do so by the respondent (it should be noted that she was offered suitable alternative employment with the same hours she worked previously in a location convenient to her).

Therefore, being cognizant of the precedents set by the Employment Appeals Tribunal and the Labour Court set out above I find that the complainant acted unreasonably in resigning from her employment with the respondent.

 I find that she has not established an entitlement to resign.

 She has not established that her employer’s conduct was such that she had no option but to resign.

 I find that she has not established a case of constructive dismissal.

The complaint is not well founded.

The complainant submits that she was not paid her notice entitlements.

The respondent submits that as the complainant resigned from her employment, she is not due a notice payment.

I find there is no notice payment due to the complainant as she terminated her contract of employment.

The complaint is not well founded.

Constructive dismissal, unreasonable, grievance procedures, suitable alternative employment.