Complainant

Respondent

Anonymised Parties

A Mechanic

A Garage

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-00028998-001

12/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028998-002

12/06/2019

The complainant is a Polish national and commenced his employment with the respondent in its Fairview branch on 16 October 2017. He was employed as a mechanic. He transferred to the respondent’s Coolock branch on 7 January 2019 in Coolock. The complainant states that his duties comprised general mechanic duties and car maintenance and repair. The complainant worked an average of 40 hours per week.

The complainant submits that he worked alongside his father who was also an employee of the respondent. He states that he travelled to work with his father each morning as he does not have car insurance and does not drive himself. The complainant submits that his managers were aware of this fact and there was a verbal agreement between the complainant and the respondent that he and his father would always work together at the same location. The complainant contends that this agreement was made at the time when he commenced work with the respondent and that it was a condition of the complainant’s employment.

The complainant contends that in or around 15 February 2019, he was accused of stealing two separate items at his workplace, namely a car radio and radio surround system from the cars of two customers. The complainant states that he was informed of these accusations of theft from the respondent company owner Mr. P. The complainant maintains that the accusations were entirely baseless as he had not stolen any property from the respondent’s workplace and was shocked and distressed to be accused of such a serious crime.

The complainant asserts that on the same day, he was brought without warning into the respondent’s office by Mr. P who accused him of stealing the items. The complainant stated to Mr. P he had no knowledge of said items or what had happened to them. The complainant states that he has limited English and felt intimidated throughout the meeting and felt he was being pressurised into confessing to a crime that he did not commit. The complainant asserts that he was informed that if he did not confess to having taken the items that Mr. P would call the Gardai. The complainant states that he reiterated that he did not steal the items and he was happy for the Gardai to be called. The complainant submits that Mr. P then left the room and left the complainant unattended in the office for two hours. At this stage the complainant states he rang his father as he was so upset. Mr. P returned to the office and further put pressure on the complainant to confess. The complainant asserts that his father was now in attendance to support him. The complainant submits that the meeting ended without any resolution and he was informed that another meeting would be arranged for the following week.

The complainant was very annoyed about how he was treated. He had been given no notice in writing of the meeting or the accusations made against him. The complainant states that he was entirely unaware of any disciplinary or grievance procedures and as he has very little English and could not have read or understood such policies even if he had been given copies of same. The complainant states that his father was also very distressed by the treatment of the respondent towards him. The complainant states that his father had worked for the respondent in excess of 12 years.

The complainant states that the following week on 19 February, the complainant was called to a further meeting which was conducted by the respondent’s technical manager, Mr. S. At this meeting the complainant states that he was informed that there were no further issues to be investigated at this time in respect of the accusation of stealing items. However, the complainant was informed that he would no longer be working at the Coolock location and as from the following day, he would report for duty at the respondent’s Fairview premises on an indefinite basis.

The complainant submits that he was shocked at this sudden change to his employment and requested to be informed as to why he was being moved so suddenly. The complainant states that he was not given an answer to this question. The complainant asked if his father would be also moving location with him but he was informed that his father would continue working at the Coolock premises. The complainant states that he informed Mr. S that it was not possible for him to move to a separate location than his father as he depended on his father to get transport to and from work. The complainant states that these concerns were dismissed outright by Mr. S and he was told he must report to the Fairview premises on the following day.

The complainant states that he felt he was being subjected to deliberate unfair treatment and felt he had been selected for a change of location as punishment arising from the missing property. The complainant informed his father what had occurred with Mr. S. The complainant states that his father was totally shocked by said treatment. The complainant’s father then approached Mr. S and informed him of his upset at his son’s treatment and as a consequence he was resigning from his employment. The complainant states that his father felt that this was the final straw as he had numerous issues with the respondent over the years including being threatened with dismissal when he requested time off work to return to Poland for medical treatment for high blood pressure.  

The complainant states that given the adverse treatment at the hands of the employer, he had no alternative but to tender his resignation. The complainant states that Mr. S accepted his resignation but asked him to sign a piece of paper confirming same. The complainant agreed but states he did not entirely understand what he was signing. The complainant asserts that he was constructively dismissed and the behaviour of the respondent constitutes a fundamental breach of the employment contract and further that the respondent’s conduct was so unreasonable that the complainant was left with no other option but to resign from his employment. The complainant cites the following caselaw in support of his complaint Nolan V Hermans Ltd UD43/87, O’Brien v Dunnes Stores UD227/2001, Dunne v Allied Legal Service UD 579/96 and McKeigue v Downhill House Hotel UD1485/03.      

Minimum Notice and Terms of Employment Act

The complainant states that the respondent is in breach of the above Act in that he was not given his minimum notice or payment in lieu on termination of employment.

The respondent states on a preliminary issue that the complainant was not an employee of the respondent company as he named the incorrect employer on his complaint form and cites the following caselaw, the Supreme Court in Sandy Lane Hotel Ltd. v Times Newspapers Ltd. [2009] IESC 75 and Jeevanhan Al Tambraga v Orna Morrisey, Killarney Avenue Hotel UD 36/2011.

The respondent asserts that in relation to the items that went missing, while the complainant states that he was interviewed aggressively regarding same this was not the case. It submits that in fact what transpired was that the complainant asked to speak to the MD, Mr. P while he was on a walk of the workshop with the Branch Manager, Mr. C. The respondent states that there was no agreement whatsoever that the complainant and his father would work together. The respondent states that the complainant was not told that he had to work in a new location on 20 February. The respondent states that when the complainant announced that he was leaving in order to work in his father’s company, Mr. S in order to get him to stay offered him a transfer to its Fairview premises.

The respondent states that a car radio console belonging to a customer was reported to the company as missing by the customer. The company commissioned a search of the premises as in most cases, any item from a customer’s car that is not reinstalled for any number of reasons is kept. In this case, the respondent states that it was in the complainant’s toolbox. The respondent states that while that is rare, the item was re-fitted into the customer’s vehicle and the matter was resolved.

The respondent reiterates that it was the complainant who approached the MD and asked to talk about the item. The respondent states that the MD felt that this was a moot issue but based upon the insistence of the complainant he instructed Mr. S to make enquiries into the matter. Ms. S enquired into the matter and found that nothing turned on the incident as the item was located and the customer’s query was resolved. The respondent submits that the complainant’s assertions at the hearing that other employees were saying to him that he had stolen the items seemed at best fanciful as the complainant was adamant that he was not in a position to converse in the English language. However, the respondent contends that this runs contrary to its understanding of the complainant’s language comprehension and calls into question his credibility as a witness.

The respondent states that no undertaking was ever provided to the complainant that he would always work with his father and the complainant states that this was due to him having no insurance. The respondent asserts that contrary to this statement, it was established that the complainant drove vehicles onto the respondent’s property to work on them and in fact during his father’s absence for a number of weeks, the complainant drove to work alone.

While the complainant asserted that he did not receive Terms & Conditions of Employment and company policies/procedures, when presented at hearing with evidence of his signature confirming he received, read and understood both documents, he endeavoured, in the first instance to say that he had not understood what was asked of him regarding confirmation of the document laid before him at the hearing to ultimately alleging he had not understood what the form was about.

The respondent submits that the complainant’s father operated a business outside of his main principle employment and did so along with his son, the complainant. The respondent states that when asked if he worked with his father, the complainant firstly denied he did and then said he did some work with his father and that he did nixers for staff members.

The respondent refutes the allegation that it tried to punish the complainant by asking him to move to a new location. The respondent asserts that the complainant was never subject to any disciplinary action nor had the complainant submitted any formal grievances. The respondent states that the resignation is predicated on the complainant and his father (his advocate) electing to operate their own business on a full-time basis. The respondent asserts that this is further evident where the complainant who it says operated his own business, only submitted his claim four months after leaving the respondent’s employ and only when the new business had failed. The respondent further states that it is also noteworthy that the complainant submitted his claim the day he left the jurisdiction and returned to Poland. The respondent states that on the balance of probabilities, an inference can be drawn based on these facts.

The respondent reiterates that the complainant failed to raise any formal grievance with management and chose to address his issues only when he asked management to meet with him following a lost or misplaced item that was located in the complainant’s toolbox. The respondent asserts that given that the complainant resigned, it was limited in its ability to persuade both the complainant and his father not to leave.

The respondent states that the complainant did not invoke the grievance procedure in relation to the matters complained of or indeed in relation to any matters relating to his employment. The respondent notes that the complainant has not pointed to a grievance he has lodged and which was not dealt with by his employer. The respondent submits that the complainant has made no attempt to explain why he did not invoke the grievance procedure. It states that the responsiveness of the respondent to the complainant and its demonstrated willingness to accommodate him following receipt of his resignation suggest that any grievance of the complainant would have been dealt with appropriately. The respondent asserts that it was surprised that the complainant, through his father wished to leave the company and in doing so had to drive cars off the respondent’s premises that they were working on for cash.

In summary the respondent states the following;

The complainant signed for his terms of employment and handbook.

The complainant did not raise a grievance in the normal course of events.

The complainant misrepresented facts pursuant to his ability to get work.

The complainant misrepresented facts about working elsewhere.

The complainant left the jurisdiction putting himself out of the ability to mitigate loss.

The complainant resigned and was not forced to do so.  

The respondent has raised a preliminary issue stating that the complainant has named the wrong employer and therefore the WRC had no jurisdiction to hear the claim. Having examined the complainant’s contract of employment, I note that it states that “your [the complainant’s, my emphasis] employment with Ax Ax Ltd. will commence on 16 October 2017. On the first page of the contract it states Ax Ax Ltd. having its offices at various different locations including the Coolock premises where the complainant was in employment. I am satisfied therefore that the respondent is the correct employer and accordingly, I have jurisdiction to hear the complaint.

The complainant stated at hearing that he had no option but to resign his employment with the respondent due to the unreasonable manner in which he was treated by the respondent organisation.

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows;

“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”.

As the complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the complainant to establish facts to prove that the actions of the respondent were such as to justify him terminating his employment. 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 position, often referred to as the “contract test”. This requires that an employer 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” 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 asks 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 she is justified in leaving. The question for me to decide is 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 her to terminate the contract of employment.

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd. (UD 474/1981) whereby the Employment Appeals Tribunal stated that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the EAT stated,

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases, it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

A constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract.

In all of the circumstances of the within complaint, I prefer the evidence of the witnesses for the respondent as I found their testimony more cogent and convincing. I am satisfied that the complainant has not established that the respondent’s behaviour was such that it amounted to a significant breach going to the root of the contract of employment, or which indicated that the respondent no longer intended to be bound by one or more of the essential terms of the contract such that the complainant was entitled to treat himself as discharged from any other performance. I am satisfied that the complainant has not established that the respondent’s conduct was so unreasonable that he was justified in leaving his employment. I note that while the complainant stated that he did not receive a contract of employment or the company handbook; the respondent submitted in evidence a signed copy by the complainant of same at the hearing. I note that when the complainant and his father requested a transfer to the Coolock branch so as to have a shorter commute to work; this request was acceded to by the respondent.

While the complainant argued that he always travelled to work with his father; the respondent’s witnesses gave testimony to state that the complainant did drive to work on occasions by himself and did so in circumstances where his father returned to Poland previously to seek medical treatment for a period of six weeks. The respondent gave testimony stating that the complainant’s father left the employment in order to set up his own business and that the complainant also tendered his resignation to commence working alongside his father. The respondent spoke about the difficulties the company found themselves in vis a vis losing two good mechanics and difficulties encountered in sourcing mechanics at that juncture. The respondent stated that it asked the complainant to take the weekend to consider the situation. The respondent also stated that it offered the complainant and his father any branch to which they wanted to work at in order to retain them in the company but the complainant responded stating “we have enough of our own work, we are leaving”. Based on the foregoing, I am satisfied on the balance of probabilities and having considered the totality of the evidence adduced, that the complainant has not established that the respondent’s conduct was so unreasonable that he was justified in leaving his employment and accordingly he does not meet the legal test for a constructive unfair dismissal.  

CA-00028998-001 - Constructive Dismissal

Having considered the evidence in the within complaint, I conclude that this complaint is not well-founded.

CA-00028998-002 – Minimum Notice

As I am satisfied that the complainant was not constructively dismissed, I find there is no breach of the Minimum Notice & Terms of Employment Act, accordingly this claim fails.      

Constructive dismissal, minimum notice, contract of employment