Complainant

Respondent

Anonymised Parties

An Employee

A retail Employer

Representatives

Kevin Langford, Arthur Cox

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-00029497-001

05/07/2019

The respondent is a large retail outlet with a number of stores throughout Ireland.  Employees are recruited and temporarily assigned for the first number of months on a ‘floating’ basis before being assigned to a dedicated home location.

The complainant submitted that the was employed from 5 September 2016 until 9/10 January 2019.  He submitted that during his recruitment he mentioned that he would only be willing to work in the Greater Dublin area. He submitted that he was raising a case of constructive dismissal.

The complainant submitted that after an initial period as a ‘floating’ manager he was assigned to work in the Carlow outlet of the company.  He sought a temporary travel allowance or mileage but was informed that under the company procedures that no mileage allowance was payable for travel from home to the place of employment.

He sought a move but was informed that he would be staying in situ for at least two years.

He handed in his notice just before Christmas 2018 and no-one contacted him from Head Office before he left.

It was clarified that the complainant was paid €58,262 p.a.  The complainant submitted that he was not seeking loss of earnings (his new position paid €55,000 p.a.) but was seeking to have a bonus of c.€3,800 paid and the mileage of almost €3,200 that he sought while employed to be paid.

The complainant submitted that he considered that it was reasonable to expect someone to travel up to 100 km per day to and from work but not 165km.  Accordingly, he was also seeking mileage in respect of 65km per day for the duration of his time assigned to the Carlow outlet and that this amounted to €9,922.

In response to the respondent’s submissions the complainant noted that he did not raise a grievance with the respondent because he had no faith in the grievance system, citing some examples of grievances put forward by others he had heard of.

When asked what had made him resign, the complainant stated that he decided to resign after a recruiter had approached him with an offer of another position.

The respondent submitted that there was only one claim before the WRC, that of constructive dismissal and that the complainant was not seeking any relief under the Acts, so therefore there was no claim.

The respondent submitted that in this case there was only negligible loss as the complainant moved to a position which had a very similar pay level.

The respondent submitted that in both the offer of employment received before the complainant commenced employment, and in the contract of employment received in mid-October, it stated that “you will be required to transfer within on a temporary or permanent basis to other stores of the Company or within the Group, for career purposes, training or operational needs of the business.”

The respondent also submitted that its expense policy clearly states that mileage for ‘travel to and from your place of work is not an allowable business expense’.

The respondent submitted that the complainant left its employment after he received an offer of employment from another employer and that there that the complainant had not established that a constructive dismissal had taken place.  The respondent noted that as part of his letter of resignation the complainant noted that “I do not have any issue working in Carlow for all of 2019 and fully understand the needs of the business, but without an increase in salary, this is simply unviable”.

The respondent noted the contents of the complainant’s letter of resignation noting that the main issues of the complainant’s case deal with the length of his commute and with the issue of mileage.  It was submitted that none of the circumstances set out by the complainant ground a claim for constructive dismissal.

The respondent also noted that the complainant did submit a letter containing grievances to his employer, after he submitted his resignation and that these were dealt with fully.

The first element to consider is whether the complainant was dismissed and/or whether he is entitled to consider himself constructively dismissed. Having considered all the issues and evidence presented to me I note that when the complainant was asked what his reasons were for leaving, he responded by saying that he left because a recruiter had approached him with an offer of alternative employment.  I also note that in his resignation letter dated 13 December 2018, the complainant notes that he did not have any issue working in Carlow, but that in the absence of an increase, his position was unviable. 

The Unfair Dismissals Act 1977 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 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”

The complainant has not submitted that he was dismissed but rather seeks to rely on the definition of constructive dismissal.  Having heard the evidence, I find that the complainant was not dismissed and given his reasons for resignation, he has not established that it was reasonable for him to resign due to the conduct of his employer.  As such, he is not entitled to consider himself constructively dismissed. Therefore, the complainant has not established facts from which dismissal, constructive or otherwise, may be inferred and his complaint should fail.

The complainant has not established facts from which a dismissal may be inferred; accordingly, my decision is that he is not entitled to succeed in this complaint.

Unfair dismissal, constructive dismissal,