UDD2010

The Appellant transferred in to the Respondent company on 27^thOctober 2014 and his service was continuous since 8^thAugust 2011. The Appellant was employed as a security officer.

The Appellant contends that he was constructively dismissed by the Respondent. The Respondent submits that the Appellant willingly resigned his employment on 18^thSeptember 2017.

The Adjudication Officer found the Appellant’s complaint not to be well founded.

The fact of dismissal is in dispute.

Summary of the Appellant’s case

It is the Appellant’s case that he has had a range of issues with the Respondent since he became an employee of the Respondent following a transfer of undertakings in 2014. He said that he had made a number of complaints internally and under statute to address what he claimed were failures on the part of the Respondent to afford him his statutory rights. He submitted that he had been involved in three incidents at work where, in the course of his duties, he had suffered injury. The last such incident occurred on 29^thJune 2017. He submitted that the Respondent may not be compliant with their obligations under the Safety, Health and Welfare at Work Act, 2005.

The Appellant submitted that, at the end of July 2017, he and another employee had discovered that ‘Mall Security’ had received a pay increase in June. He submitted that this matter was raised with a manager of the Respondent and that the increase was included in his August pay. However, he submitted that his hours of work were cut from 45 hours per week to 39 hours per week on average at about the same time.

He submitted that he had tendered his notice in September 2017. He said that the Respondent’s behaviour during his employment was so unreasonable as to mean that he had ‘had enough’ and had left his employment as a result.

He submitted that he had raised no grievance as regards the matters giving rise to the termination of his employment. He submitted that he had issues as regards the conduct of a senior manager, Ms LO’N, but he could not see how he could raise a grievance against a senior manager to a manager at the same level. He submitted that he had sought engagement with a manager who was senior to Ms LO’N but had been unsuccessful.

The Appellant submitted that he had not received a letter which the Respondent contends had issued on 25^thSeptember 2017 seeking a meeting with him.

He stated when questioned by the Court that he had been unable to take up employment since the termination of his employment because of illness.

Summary of the Respondent’s case.

The Respondent submitted that no dismissal of the Appellant took place. The Appellant had been engaged as a security officer on a 40 hour per week contract by the Respondent since his transfer in October 2014. On 18^thSeptember 2018 the Appellant submitted his resignation letter giving one month’s notice. In that letter he cited several issues as giving rise to his resignation including many issues which had been dealt with at the Labour Relations Commission, the Workplace Relations Commission, the Labour Court and the Civil Courts. Following receipt of the Appellant’s resignation letter the Respondent wrote to the Appellant on 25^thSeptember 2017 seeking a meeting. The Appellant however did not respond to that letter or otherwise engage with the Respondent.

Having regard to the Act at Section 1 and the principles established by the Employment Appeals Tribunal and the courts generally, there is a burden upon the Appellant to demonstrate that he was entitled to terminate his contract of employment by virtue of a breach of contract on the part of the Respondent in a manner which went to the root of that contract or because the respondent had acted so unreasonably as to make the continuation of the employment intolerable and it was reasonable for the Appellant to resign. The Respondent submitted that no such breach of the contract or unreasonable behaviour on the part of the Respondent had occurred.

The Respondent submitted that in the course of his employment the Appellant undertook three different claims to the relevant third party process which the Respondent fully engaged in. On one occasion the Respondent was found to have breached relevant legislation. That legislation was the Transfer of Undertakings regulations.

When questioned by the court the Respondent asserted that the Appellant was very familiar with the internal grievance procedures of the Respondent, having utilised those procedures on more than one occasion. The Respondent asserted that, at the date of his resignation, no grievance had been raised by the Appellant utilising the available procedures.

The Law

Section 1 of the Act defines constructive dismissal in the following manner

• 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

• 6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The question that arises for decision in this case is whether or not, having regard to the Act at Section 1, it was reasonable for the Complainant to terminate his employment because of the Respondent’s conduct and consequently whether a dismissal within the meaning of the Act has taken place and that such dismissal was unfair.

The Court notes the Appellant’s submission that he felt that he had reached a point where he had to leave his employment. He submitted that he had suffered an injury at work and that he did not feel that the Respondent had supported him adequately through that matter. He also submitted that he had taken a range of cases through third party procedures. Finally, he submitted that he and a colleague had not been aware of a pay increase awarded to other staff and that they had raised that matter with a manager who, it appears, arranged for the application of that pay increase to the Appellant and his colleague albeit the Appellant has contended that his hours work were reduced at around the same time.

The Court notes that the Appellant had raised no grievance with the Respondent utilising the internal procedures at the time of his resignation on 18^thSeptember 2017

Dismissal as a fact is in dispute and therefore it is for the Appellant 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 has been interpreted as envisaging two circumstances in which a resignation may be considered to amount to constructive dismissal.

Firstly, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; in essence 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”.

That burden in particular requires the Appellant to demonstrate that he provided the Respondent with an opportunity to address the grievances which he has submitted amounted to the reasons for his termination of his employment.

In Beatty v Bayside Supermarkets UD 142/1987 for example 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”.

In the instant case, the Appellant has submitted that he had concerns as regards Health and Safety matters, pay matters, difficulties regarding his treatment following injury at work, organisation of working time matters, employment equality matters and matters which relate to the Payment of Wages Act, 1991. Many of the matters identified appear to have been pursued to a conclusion by the Appellant under relevant legislation.

The Appellant, at the point of his resignation, appears to have been concerned as regards the aftermath of an injury at work which he had sustained, a matter related to a pay increase which had only been applied after he raised the matter with a manager, his inability to secure a meeting with a manager who was senior to Ms LO’N who was a manager against whom he stated that he had a grievance, and a matter related to his working hours which he claims were reduced at about the time a pay increase was applied.

The Respondent submitted that, prior to the termination of his employment, the Appellant had raised no grievance through the internal procedures as regards these matters. The Respondent has also submitted that the Appellant is very familiar with the internal procedures as a result of his utilisation of same on more than one occasion during his employment. The Respondent submitted that it had participated fully in any procedure initiated by the Appellant during the course of his employment.

The Appellant has submitted that he did not raise a grievance through the internal procedures of the Respondent because he could not see that, given his issue was with a senior manager, Ms LO’N, he could not expect fairness from another senior manager of the same level.

The Court has been given no basis to support a conclusion that the stated reason of the Appellant for non-usage of the internal grievance procedure was reasonable or represented a factor which might excuse the Complainant’s failure to allow the Respondent to address his concerns prior to his resignation. There is no dispute that the Respondent had a grievance procedure in place and that the Complainant was aware of its existence and operation.

On the facts of this case the Court cannot see how it could reasonably be found that the Respondent was guilty of conduct in relation to the Appellant which was such as to entitle him to terminate his employment without having sought to ventilate and resolve whatever grievance(s) that he had through the internal grievance procedure. The fact that he failed to do so is fatal to the proposition that his decision to resign could be regarded as a reasonable response to the situation then pertaining.

Determination

In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s 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 his contract of employment. Accordingly, the Court must hold that the Appellant’s employment did not come to an end by reason of dismissal.

The Court determines that the Appellant’s complaint is not well-founded. The appeal fails and the Decision of the Adjudication Officer is affirmed.

The Court so Determines.

Signed on behalf of the Labour Court



Kevin Foley
TH______________________
12 February 2020Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.