Complainant

Respondent

Anonymised Parties

Environment Heath Specialist

Manufacturing

Representatives

Harry McCullagh  McCullagh Wall Solicitors

Unrepresented

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-00031249-001

02/10/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00031249-002

02/10/2019

The claimant made two complaints to the Workplace Relations Commission against her employer. She alleges that the respondent constructively dismissed her from her employment within the meaning of Section 8 of the Unfair Dismissals Act 1991 and failed to pay an amount due under Section 6 of the Payment of Wages Act 1991

The respondent did not attend on the day set for the hearing. The case referred to me by the Director General of the workplace relation commission to inquire into and give the parties an opportunity to be heard.

I conducted an oral hearing on the 13 of January 2020 the claimant attended the hearing on day and was given the opportunity to state her case.

The claimant submits the following:

1. That her dismissal was unlawful and in breach of her fundamental rights to fair procedure and natural justice.

1.1               That she was entitled to terminate her Contract of Employment with the respondent due to a fundamental breach of said contract

1.2               That she commenced work with the respondent as a contract worker in January 2011 as an Environmental Health Specialist

1.3               That Environmental Health Specialist Manager began working with the respondent on or about October 2017, whom the claimant was reporting to. On or about November 2017 a Senior Environmental Health Specialist began working for the respondent. The claimant assisted the Senior Environmental Health Specialist in the training for the position including informing him of the various site procedures that were required to be followed.

She contends that the Senior Environmental Health Specialist appeared to be struggling with the position and with the nature and demands of the work. She also contends that she assisted him if he incorrectly sent out the wrong reports.

1.4     The claimant contends that the Environmental Health Specialist became aggressive towards                                              her. She organised a meeting which was to be attended by the Manager, the Senior Environmental Health Specialist and herself.

           The Senior Environmental Health Specialist did not attend said meeting and the claimant         contends that she was reprimanded for upsetting her colleague.

1.5               When the claimant informed the Manager that she was shouted at by

her colleague who was behaving unprofessionally and was not doing any core work the Manager asked if she wished to make a formal complaint. She informed him that she did not wish to do so as all she was asking was that the Senior Environmental Health Specialist complete the tasks assigned to his role and build a professional team environment.

1.6               The claimant also contends that nothing changed after the meeting

with the Manager however she maintained a professional approach with her colleague which was not reciprocated.

1.7               She also stated that her previous Manager had promised her a pay rise that did not materialise after a change in management. The promise of a pay rise was in addition to the claimant doing significant overtime, during the course of her employment, one hundred and eighteen hours in total (118) which she was not paid for nor given compensatory time off and which she submits was owed to her, on the date the employment ended, it being the 5th of April, 2019

1.8               It is also claimed that in June 2018 the claimant applied for a position

with the respondent company as an Environmental Health and Safety Specialist and she received a confirmation email of her application.

However her Manager delayed the interview and on 2nd August 2018 the Manager called her to his office and stated that he was verbally terminating her contract and giving it to the Senior Environmental Health Specialist on the basis that “he needed a man on the ground”.

The Manager acknowledged that the claimant’ s contract was due to terminate in December 2018 but stated that he could terminate the contract whenever he wants.

1.9               That the Manager told her that she would not be getting the job she

had applied for as she was not experienced enough.

2.       That this was a complete shock to the claimant as she had never received negative feedback regarding her work, she took great care in ensuring that she achieved the highest standards in relation to her work and she had continued professional development.

2.1     The claimant submits, it was general knowledge amongst the staff     that   she was leaving even though she had not communicated such information to her colleagues. This the claimant       alleges, was communicated to her colleagues by the Senior Environmental Health Specialist who informed them that he would be taking her job.

2.2   That the contracting company were unaware that the claimant’s contract was terminated.

2.3 That she requested a termination date from the respondent which was not forthcoming and she continued doing work at management level. The claimant was offered work by an Engineering Director which she accepted and during that time she continued to receive calls and texts to her own personal number from her previous Manager who was looking for her to continue with the work she was doing.

2.4 The claimant sought the assistance of the Occupational Health Nurse in or about October 2018 who then referred her to an Occupational Physician who noted in his report that she “ was distraught and would benefit from an Employee Assistance Programme”.

2.5 That she met with members of Human Resources on the 29th November 2018 where she was given a copy of the company’s Policies and Procedures regarding the complaint she wished to make. She informed the respondent that she was not making a formal complaint at that stage.

2.6 That her dismissal was on 2nd August 2018, was unlawful and in breach of her right to fair procedures and natural justice in circumstances where she was dismissed without warning and without any prior notice of same.

2.7 That her situation was entirely unsupported by the respondent in circumstances that she sought the assistance of an Occupational Health Professional of the respondent and the Human Resources Department, neither of which provided her assistance in terms of her current employment status.

2.8 That she was entitled to terminate her contract as a result of a fundamental breach of her contract by the respondent.

2.9 The claimant sought to rely on a number of cases of jurisprudence in support of her claim of constructive dismissal as follows:

The Reasonableness Test-

Joyce v Brothers of Charity Services, UD407 / 2008

“(The Tribunal) must be satisfied that the employee is either entitled to or is acting reasonably in terminating the contract. In order for an employee to meet either of these criteria, the conduct referred to cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employee and the employer. Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the recognition by the employee”.

3. Mr. Justice Flood found in Frizelle v New Ross Credit Union (1997)

IEHC 137 that “The whole process is tainted with irregularity, impropriety and other agendas that his dismissal must be considered to be an unfair dismissal”.

3.1 McLachlin J held in   Wallace v United Grain Growers Ltd, (1997)

SCR 701 that “A wrong arises only if the employer breaches the contract by failing to give the dismissed employee reasonable notice of termination”.

Unrepresented at hearing

Complaint of Constructive Dismissal:

Complaint seeking adjudication under Section 8 of the Unfair Dismissals Act 1997:

The claimant worked with the respondent for over seven and a half (7½) years.

The claimant submitted in evidence that the working relationship was good but subsequently deteriorated to the point that she sought the assistance of an Occupational Health Professional of the respondent company.

Constructive Dismissal is defined in Section 1 of the Unfair Dismissals Act 1997 -2015 as “The termination by the employee of his Contract of Employment with his employer whether prior notice of termination was or was not given to the employer in circumstance which, because of the conduct of the employer the employee, was or would have been entitled to terminate the Contract of Employment without giving prior notice of the termination to the employer”.

Section 6 of the Act states: “Subject to the provisions of this Section the dismissal of an employee shall be deemed, for the purpose of the Act, to be an unfair dismissal unless, having regard to all the circumstances, there was substantive grounds to justify the dismissal”.

The combined effect of these two provisions of the Act places an obligation on an employee to establish that the employer’s treatment of an employee were so serious that their resignation amounted to dismissal within the meaning of the Act.

In UD 2166/2011 the Employment Appeals Tribunal held “That a high bar must be surmounted in proving Constructive Dismissal”.

In McCormick v Dunnes Stores ADJ 00012803, the Employment Appeals Tribunal held “That the employee had to demonstrate that he had “exhausted all internal procedures formal or otherwise in an attempt to resolve his grievance with his/her employer”, before resigning”.

In Conway v Ulster Bank Ltd, UD 474 1981 the Employment Appeals Tribunal held “By a majority that the claimant did not act reasonably by resigning without first having substantially utilised the Grievance Procedure to attempt to remedy his /her complaints. An elaborate Grievance Procedure existed but the claimant did not use it. It is not for the Tribunal to say whether using the Procedure would have produced a decision more favourable to her but it is possible”.

There are two tests for Constructive Dismissal in the statutory definition. Either or both may be invoked by the employee and are interchangeable.

The first being “The Contract Test” in which the employee argues “Entitlement” to terminate the Contract and the second being “The Reasonableness Test” that is that the conduct of the employer was such that it was reasonable for him (the employee) to resign.

In the instant case I have considered the evidence, the submission of the claimant and the oral evidence at the hearing.

I have considered relevant jurisprudence and whether it was reasonable for the claimant to resign without invoking the Grievance Procedure that was in place in the respondent company and which she was aware of.

I have also considered Section 1 of the Unfair Dismissal Act in the context of the conduct of the employer.

I find that the complaint of Constructive Dismissal is not well founded, and she was not unfairly dismissed for the following reasons:

1)      While the claimant was clearly dissatisfied with the manner she was treated by the respondent in the instant case with some justification, she failed to establish that they were objectively of such a magnitude that she would not have been expected to put up with them while she processed a Grievance through the established procedure.

2)      It was adduced in evidence that the claimant was fully aware of the existence of the Grievance Procedure and choose not to use the said procedures.

I find that the claimant decided to resign her employment in difficult circumstances, which I believe the respondent significantly contributed to.   However it did not amount to Constructive Dismissal as set out in the case law above.

3)      As the claimant submitted the respondent verbally terminated her contract in August 2018 in circumstance that her contract was due to end in December 2018. The claimant continued to work for the respondent until 5th April 2019 when she resigned.

Complaint in respect of the Unfair Dismissals Act:

Section 8 of the Unfair Dismissals Act requires that I make a decision in respect of the claimants claim that she was unfairly dismissed.

I find that the complaint of Constructive Dismissal was not well founded and she was not unfairly dismissed.

Complaint in respect of the Payment of Wages Act:

Section 6 of the Payment of Wages Act requires that I make a decision in respect of the claimants claim that she is owed monies in respect of additional hours as a result of the failure of the respondent to pay her or give her compensatory time off.

The claimant in evidence submitted that she accumulated additional hours, one hundred and eighteen (118) hours in total. However, she also submitted in evidence that when the environmental health specialist manager was appointed, in or about 2017, she had accumulated the 118 hours. Therefore, in accordance with 41.(6) of the Workplace Relations Act 2015, I find that the claim is statute barred as it is out of time and as a consequence, the claim is not well founded.

“Constructive Dismissal”

“Payment of Wages”