Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Wholesaler

Representatives

David Colgan B.L. instructed by Sherwin O'Riordan Solicitors

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00027925-001

23/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00027925-002

23/04/2019

There are two complaints; the first of constructive unfair dismissal and the second of racial discrimination contrary to the Employment Equality Acts.

The complainant says that he had been the victim of racist conduct by a co-worker.

This was raised at the level of the workplace, initially informally and then, on December 3rd, 2018 by means of a formal complaint.

The complainant was not entirely satisfied with the investigation which followed although it did uphold his complaint and resulted in disciplinary action against the perpetrator.

However, despite a request that he would not have to be in contact with the perpetrator this did not happen.

Despite raising the matter and seeking certain changes to his place of assignment or shifts so that he did not have to come into contact with the perpetrator nothing was done.

Accordingly, he resigned.

He states October 31st, 2018 as the date when the discriminatory act occurred.

The respondent disputes the validity of the complaints.

The complainant did make a complaint which was fully investigated by the respondent and upheld in February 2019.

Disciplinary action was taken against the subject of the complaint.

In March 2019 the complainant himself was the subject of disciplinary proceedings as a result of unauthorised absence from work. At that meeting he said that his absence was a result of not wishing to work with the person against whom he had made the complaint.

He was advised to speak to his manager or the HR department about this or take steps under the respondent’s Grievance Procedure.

He did not do so nor did he raise any other complaint about the matter.

In fact, the steps taken by the respondent against the person complained of were effective and there was no repetition of the conduct complained of.

He resigned on March 31st, 2019.

In his letter of resignation, he stated the reason for his resignation as being

‘due to the fact that I have found a career in a new line of work which requires me to leave. I appreciate my time at the company and all the opportunities it has brought me’.

He went on to offer to cooperate with any transitional arrangements necessary in his last week.

He declined the opportunity of an exit interview and now claims that his resignation was prompted by the failure of the company to prevent him ‘coming into contact with staff members of a different race’.

At no stage did the complainant avail of the respondent’s grievance machinery and he had alternatives to resignation which he could have used.

Therefore, his complaint of constructive unfair dismissal must fail.

In relation to the complaint under the Employment Equality Act (which is based on the same set of facts) the respondent took immediate and effective steps to bring the conduct complained of to an end and no further liability attaches to it for those actions.

Turning first to the complaint of constructive dismissal, the Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination by a party of any contract of employment.

It is, after all, a breach of a legally binding contract; in this case a contract of employment.

Where an employer wishes to do so, there must be cause, this must be followed by a fair process and finally, the sanction of dismissal must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

Most complaints under the Act follow the termination of the employment by an employer and the three tests set out above will then determine whether the dismissal has been a fair one.

On the other hand, where an employee wishes to terminate the employment it is relatively easy for them to do so by simply giving notice of their intention to do so and then resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in ireland’ the late Dr Mary Redmond has said (at p340

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employers grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘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.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered.

Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

Applying these tests to the current case the complainant does not fare well.

Not only did he not avail of the respondent’s grievance machinery (even when specifically advised to do so, and also given other options) he appeared to part company with the respondent on relatively amicable terms; offering to assist the respondent with any transitional arrangements and expressing appreciation for his time with the company, as outlined above in the respondent’s submission.

More significantly he indicated that he was leaving as he had found a ‘career in a new line of work’.

There is not the remotest indication here of;

‘conduct of the employer [being] unreasonable and without proper cause’

Or

‘such that the employee cannot be expected to put up with it.’

as required by the decision in Berber, indeed all of the evidence indicates the contrary.

He also declined the opportunity of an exit interview and whatever subsequent re-evaluation he engaged in of the facts will not be sufficient to ground a case of constructive dismissal on the basis of the legal principles set out above; indeed, it is entirely lacking in credibility on any basis.

His submission that there was a breach of the Employment Equality Act similarly lacks merit.

It is clear that the respondent dealt with the first complaint with all due dispatch, upheld the complainant’s grievance and then acted accordingly. Its actions seem to have been effective in brining the complained of conduct to an end.

The complainant submitted to the hearing that he had sought that either he, (the complainant) or the perpetrator should be moved or placed on a different shift, but having been invited to take further very reasonable steps on this he failed to do so.

This was not disputed at the hearing and it is fatal to his case for constructive dismissal.

For that reason, the specific assertion in his written submission that ‘he had no other option than to hand in a resignation’ is demonstrably untrue. He had several other options

Therefore, no case arises under the Employment Equality Acts either; the initial breach was addressed and there is no evidence of any later breach.

Accordingly, both claims fail.

I find that complaints CA-00027925-001 and 002 are not well founded.

Constructive dismissal, racial abuse.