ADJ-00015988

Complainant

Respondent

Anonymised Parties

Multi Activity Instructor

Activity Centre

Representatives

Sinead Mullins IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00020741-001

24/07/2018

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

CA-00020741-002

24/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00020741-003

24/07/2018

The complainant submits that he was constructively dismissed, that he did not receive his terms of employment and that the respondent contravened the legal provisions under fixed term workers legislation.

The complainant submitted that he has not received terms and conditions of employment since 2012 having commenced employment in 2011.   In the summer of 2017, the complainant received a casual contract but advised management he would not sign same as he had concerns about it.

The complainant submitted that he was advised on March 8th 2018 that management would deal with him directly regarding his contract but he heard nothing else about his contract.

The complainant commenced as a seasonal worker in April 2011 and moved to a permanent hourly casual position in September 2012.

The complainant received a number of fixed term contracts owing to the seasonal nature of his work. In September 2012 he received a permanent contract and in 2017 all staff were issued with contracts of employment which the complainant did not sign and did not return. On 5th January 2018 the complainant looked for a copy of his contract and he was provided with same and in his complaint form the complainant accepts that he received a copy and, in an email, dated 8th March 2018 the complainant states “yes we were give(sic) a ‘contract’ last summer”.

Section 3 of the Act sets out that “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing …particulars of the terms of the employee’s employment…”

The complainant submitted that he received a contract but was not happy with it. I find therefore that the respondent has met their obligations in providing the complainant with his terms and conditions of employment. I do not uphold the complaint and I find the complaint is not well founded.

The complainant submitted that he was unhappy with a contract he had received and could not get a resolution to this. On 11th April 2018 he had a meeting with Mr A, his manager, and was shocked when Mr A told him that the complainant would not be working in his usual role and that there was a position at a lower level available. Mr A also referred to performance issues which came as surprise to the complainant as in all his years with the respondent there had never been any performance issues and he enjoyed the work that he did as an instructor.

Following the meeting with Mr A the complainant submitted that he felt he had no alternative but to resign his position which he did by email on 17th April and the respondent did not respond to him

The complainant confirmed that he had rescheduled the meeting with Mr A on a few occasions.

The complainant submitted that he had been unavailable for work as he had been doing a course and that he had applied for other jobs but did not have any proof of same.

The respondent submitted that the worker was engaged as casual permanent employee working as a Multi-Activity Instructor and Lead Land Instructor at the adventure centre.

While on lay-off between October 2017-February 2018 the complainant was offered work maintaining pitches but the complainant declined the offer and remained on lay-off. The complainant sought a copy of his contract in January 2018 and also a letter for Department of Social Welfare regarding his employment status which was provided to him. Between March 2018-April 2018 Mr A sought to meet with the complainant but the complainant cancelled on numerous occasions often at the last minute.

The complainant emailed the respondent on 30th March querying about his work and the respondent advised that they had been trying to meet up with him but to no avail. When Mr A met with the complainant, he discussed with him some concerns around what had arisen in the 2017 season including roles and responsibilities, working hours and the complainant’s attendance issue whereby the complainant would often not show up for work.

The respondent was surprised to receive the complainant’s letter of 17th April 2018 but did not respond to it as he thought that the complainant had made up his mind.

It was submitted the complainant had resigned and that his resignation did not meet the contractual test or reasonableness test of constructive dismissal. Furthermore, the complainant had not engaged with the grievance procedure or escalated any concerns he may have had to the next level of management. It was also submitted also that the complainant had not mitigated his loss and provided no evidence of same.

Case law cited included Travers v MBNA Ireland ltd UD720/2006, Conway v Ulster Bank, Sheehan Continental Administration Co,Burke v Superior Express Ltd.

The claim is one of constructive dismissal, pursuant to Section 1 of the Unfair Dismissal Act 1977. In reaching my conclusion I have carefully evaluated the evidence adduced in the course of the hearing and taken full account of written and oral submission made by the parties.  

It is set out in Section 1 of the Unfair Dismissal Act that constructive dismissal is: “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”.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his/her position, often referred to as the “contract test”. The employer is thus “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” as held in Western Excavating (ECC) Ltd v Sharp[1978] IRL 332. Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test seeks out whether the employer conducted his or her affairs, in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so he/she is justified in leaving.

The Supreme Court in Berber detailed, “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 to determine if it is such that the employee cannot be expected to put up with it.” This places the burden of proof on the employee to show that her resignation was justified in all the circumstances.  

The question arises therefore, whether because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for him, to terminate the contract of employment. It is necessary, therefore, to examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test, must also act reasonably by providing the employer with an opportunity to address any grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment, before taking the step to resign which has been set out in Conway v Ulster Bank LimitedUDA474/1981.   There may also be situations whereby failure to utilise or give prior formal notice of a grievance may be justified such as Liz Allen v Independent Newspapers [2002] 13 ELR

The complainant had been engaged as a seasonal permanent worker and in October 2017 commenced a period of lay-off as had been the norm. The complainant in January 2018 wrote looking for details regarding his employment status and there appears from the tone of emails, concerns about the terms and conditions of his employment. The complainant and Mr A were due to meet on a number of occasions but it was 11 April 2018 before the meeting eventually took place. The complainant submits that he believed that he was left with no alternative but to resign following this meeting and submitted his letter of resignation on 17th April

It was clear from the complainant’s evidence that he was upset before the meeting of 11th April and that he was taken aback at the meeting from what he perceived as negative feedback on his performance and what he saw was a demotion. He submitted his letter of resignation on 17th April and the respondent choose not to respond to this email.

In Berber Finnegan J. held: -

“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.”

I find the complainant has met the standard of reasonableness required to substantiate a claim of constructive dismissal and while not formally utilising the respondent’s formal grievance procedure, this has been considered justified in Liz Allen v Independent Newspapers [2002] 13 ELR 84 and I find that the complainant put the respondent on notice of his concerns and the respondent made no effort to resolve the issues and the conduct of the respondent was not reasonable.

I find that Complainant was constructively dismissed from his employment and this dismissal was unreasonable and unfair and that the complaint of unfair dismissal is well founded.

Having considered the remedies available I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case. With regards to mitigation of loss, I note that the complainant was unavailable for work due to a course he commenced and also provided no evidence of any efforts to mitigate his loss.   This does not meet the standard set out in Sheehan v Continental Administration Co Ltd (UD 858/1999) in that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss." The maximum compensation payable in circumstances where no loss has accrued is four weeks remuneration.

The complainant submits that the respondent has contravened the legal provision in relation to the number of successive fixed term contracts that can be issued to him and that he has been a seasonal worker for over 10 years.

The respondent submitted that the complainant is not a fixed term worker as defined under the act and does not have locus standi to pursue a claim as he was a permanent worker as per his contract.   The complainant operated as a permanent seasonal worker who was placed on lay off during the off season which was confirmed in the letter to the Department of Social Welfare in December 2017.

The complainant sets out that the respondent had contravened the legal provisions of the number of successive fixed term contracts that can be issued to him. The respondent submits that the complainant is a permanent seasonal worker and not a fixed term worker.

It is set out in Section 2(1) that a “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

( a) employees in initial vocational training relationships or apprenticeship schemes, or

( b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

A permanent employee as defined under the Act “means an employee who is not a fixed-term employee”. The Labour Court in FTD146 Stanley v Irish Museum of Modern Art sets out that “the defining characteristic of a fixed-term contract, or fixed-term employment, is that it is determined by an objective condition which is identifiable without reference to the view or perception or intervention of either party to the contract”.

Based on all the evidence I do not find that the complainant meets the definition of a fixed term worker and therefore I have no jurisdiction to hear the complaint and I find that the complaint is not well founded.

CA-00020741-001

I do not uphold the complaint and I find the complaint is not well founded.

CA-00020741-002

1.       I find that the complainant was unfairly dismissed and that the decision to dismiss the complainant was unreasonable and unfair and that the claim is well founded. I find it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €1,716.00.

CA-00020741-003

I have no jurisdiction to hear the complaint and I find that the complaint is not well founded.

Constructive dismissal, terms and conditions, fixed term worker