ADJ-00021796

Complainant

Respondent

Anonymised Parties

{A Stagehand}

{A Venue}

Representatives

Ian McDonnell Forsa

Judy McNamara IBEC

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-00028515-001

20/05/2019

The Complainant has been employed with the Respondent since 20th October 2010.

The Complainant was constructively dismissed by the Respondent.

In December 2018 the Complainant appealed a decision ADJ-00012481 to the Labour Court which decision was made in his favour on 28th February 2019. On the date he lodged his complaint May 2019 the Respondent has failed to pay the money awarded. The Complainant has to instruct a solicitor to apply to the District Court for enforcement.

In March the Complainant applied for a banded hours contract which went unanswered for three weeks. He was also docked money and was given no reason or response as to why this occurred. At the same time management hired agency workers instead of rostering part-time staff, this was done to prevent hours being accumulated by part-time staff for banded hour contracts.

This was the first time this occurred where staff were replaced.

The Complainant emailed the Respondent complaining about his intimidation and treatment on 19th February 2019 and never received any response, nor was this investigated.

The Respondent denies the claim and says it does not meet the burden of proof to substantiate a claim of constructive dismissal.

The Complainant commended employment with the company as a part-time casual stagehand in November 2011.

The Labour Court decision of 28th February 2019 found the Complainant had breached the Protection of Employees (Part-Time) Work Act 2001 and directed the Complainant should be placed on the equivalent point on the fulltime pay scale with effect from 20th June 2017. The Respondent is a statutory body and is required to seek approval on pay from the Department. This was only received on 29th May 2019. The Respondent communicated they would implement the decision to the Complainant and his solicitor.

The Complainant sought to be placed on band F on 6th March 2019. The Respondent contacted the Department on a number of occasions regarding the changes to terms and conditions on a band. The Respondent wrote to the Complainant’s representatives on 28 March and 15 April 2019 explaining the delay.

On 2nd May 2019 the Complainant resigned from his employment his final day being 13th May 2019. The Respondent received clarification from the Department on 29th May 2019 on the changes to terms and conditions due to being placed on a band of hours.

The Respondent refutes they hired agency workers rather than rostering part-time staff. On the day an employee was ill. The Complainant was rostered to work earlier that day and due to unavailability the Respondent sought agency staff.

The Complainant was incorrectly paid half an hour in March 2019, which monies were paid the following week when the error was rectified.

The Respondent denies any breach of the contract of employment of the Complainant as set out in Conway v Ulster Bank (UD474/1981). The Respondent says it acted reasonably and fairly at all times. It relies on the decision in McCormack v Dunnes Stores (UD 1421/2008) which 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”.

The Respondent says numerous complaints made by the Complainant regarding his treatment were investigated by an external investigator and were not upheld in August 2018. The CEO responded to the Complainant’s email of 19th February 2019 by email on 9th April 2019 and offered to meet him which was not taken up. The Respondent says the Complainant acted in a hasty and unreasonable manner as he had not exhausted the internal grievance procedure and relies on Travers v MBNA Ireland Ltd (UD720/2006). In Fitzsimons v Mount Carmel Hospital (UD855/2007) the invitation of return to work and offer to bring in a mediator was rejected on the grounds the employee’s relationship with her manager deteriorated so much, and in that case the employee was criticised for not engaging fully in internal procedures.

I have considered carefully the oral and written submissions of the parties in this case.

The Complainant’s claims unfair dismissal under S 6 of the Unfair Dismissals Act 1977-2015 and that he has been constructively dismissed under Section 1 of the Act. The Act defines “dismissal” in relation to an employee 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”.

In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Labour Court decision was made on 28th February 2019 and it took some months to implement this. The Respondent has produced evidence that they informed the Complainant and his representatives about the delay in implementing the decision and reasons for this. The delay was unsatisfactory but not unreasonable, and the delay did not amount to a breach of contract in my view. There was delay in responding to the Complainant’s request in relation to his band but again the Complainant was kept appraised of the reasons for this and a response was given when this was clarified. Other concerns of the Complainant were addressed by the Respondent.

Finally, the Complainant made a complaint regarding his treatment by a member of staff on 19th February 2019. A number of previous complaints against the member of staff had not been upheld. The CEO responded to this some time later, but the Complainant did not invoke the formal grievance procedure nor seek to discuss the matter with the CEO.

The burden of proof on the Complainant to show the Respondent breached his contract or conduct so unreasonable that he had no option but to resign has not been discharged. The complaint of constructive dismissal is not upheld.

The complaint of constructive dismissal is not upheld.

Constructive dismissal, breach of contract, unreasonable behaviour,