ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026427
Parties:
| Complainant | Respondent |
Anonymised Parties | General Operative | Telecommunications and Transport Infrastructure |
Representatives | Self | Mary Fay BL, Ciara Fulton Solicitor of Jones Cassidy Brett Solicitors, Kieran Costello |
Complaint:
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-00033745-001 | 12/01/2020 |
Date of Adjudication Hearing: 27/08/2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint
Background:
The Complainant was employed as a General Operative from 20th June 2009 to 15th September 2019. |
He was paid €650 gross per week. He has claimed that he was constructively dismissed and has sought compensation. The Respondent company has rejected this claim.
Summary of Complainant’s Case:
The Complainant listed the following incidents that he alleged caused him to resign his position. 1) Eastern Location Generation Station 2015 |
He stated that a colleague had acted dangerously swinging a digger that nearly seriously injured him. He told his manager that he would not work with him again. He reported this matter to a senior manager, but nothing was done about it.
2) Kerry 2016
He stated that he was bullied by a senior manager while he was working there. The manager made a laugh of him. He decided not to do anything about it at the time.
3) Charleville incident 2017
He stated that he got caught up in a robbery. The side window of his van was smashed in the robbery. The Respondent refused to repair it. He had to drive around for eight days with a broken window. He didn’t raise a grievance at that time.
4) 2019 incidents
(1) Compassionate leave
His family had a very tragic situation. He needed time to be with his family and arrange the funeral which was in the UK. He was refused compassionate leave but instead given holidays which is against policy. When he eventually returned to work, they placed him under the senior manager who had bullied him in the past, so he had no option but to resign his position.
(2) Redundancy
He was offered voluntary redundancy in 2017 but he declined. He requested it in 2019 but was refused.
He decided that he had no option but to resign his position. He didn’t raise a formal grievance with his employer. He has no recollection of getting a written contract or grievance procedure.
He is seeking recognition by the company of its behaviour towards him. It is a principle for him that they should acknowledge how he was wrongly treated.
By 6th October 2019 he found work at three days per week, earning €280 per week. His wife needed support following the bereavement, so he hasn’t worked since March 2020.
Summary of Respondent’s Case:
The Respondent denies this claim. They stated that he resigned his position. The earlier incidents referred to 2015, 2016 and 2017 were allegedly historical incidents. The Respondent company is not aware of these alleged incidents. No record exists of these. The Complainant did not raise any grievance at that time. However, despite that fact any of these alleged incidents are denied. Likewise, the Respondent has no record of any wages being owed and has no record of an alleged health & safety issue, despite these matters being historical. They have a record of the incident when a robbery occurred. This was in 2018 not 2017 as stated. Once the Respondent company was notified and the vehicle was available to them, as there was a Garda investigation, they had the window repaired. On 10th June 2019 he did not attend work. On 11th June he texted his manager to inform him that his son had died in the UK and he sought financial assistance. He requested redundancy. He was advised that redundancy was not available. They discussed the possibility of a short-term loan. By 14th June he texted his manager to say that everything was sorted financially, and he asked how much compassionate leave he was entitled to. He also advised that the funeral was on 28th June and he would be back at work on 1st July. He was paid from 10th to 14th June which the company treated as compassionate leave. The payroll system doesn’t have a mechanism to describe it as such and it appears on the payslip as holidays but in fact it was compassionate leave. Because he did not contact the company, they paid him to weeks ending 21st June and 28th June as holidays. They believed that was fair as he had not contacted them. He did not return to work on 1st July as advised. The Respondent tried to contact him on a number of times but to no avail. The company then wrote to him on 12th July asking him to contact his manager. The manager continued to phone him but got no reply. The company wrote further letters on 22nd July and 2nd August. They stopped paying him by 28th June but did not treat it as a disciplinary matter. On 7th August the Complainant texted that he was going through a difficult time with his family. He offered to send in a medical certificate but that did not arrive. The company again wrote to him on 12th August. Two medical certificated were sent for the period 12th to 26th August 2019 and 26th to 9th September. On 15th September the Complainant texted the company to say he was not happy and requested his P45.The Manager tried to contact him again by ‘phone but to no avail. He was then notified by the Company that they accepted his resignation on 24th September 2019. In October the Complainant texted the Company seeking his P45. He was advised that P45s are no longer in use. On 9th November he again sought his P45 and enquired about redundancy. He was again advised that P45s are not in use and that redundancy was not an option as he had voluntarily resigned his position. The Complainant then texted his manager to say that they could give the money to the homeless and he had another job. at €780 per week. On the claim form he stated that he took up work on 6th October 2019. It is their position that they acted fairly and reasonably at all times. He received one week’s compassionate leave and also his absence was treated as holidays for another two weeks. Despite the Complainant’s lack of contact during this period they took no action against him. In its legal submission the Respondent stated that when a constructive dismissal is claimed the initial burden is on the Complainant to show that a dismissal actually took place. There are two tests that may be invoked by the Complainant, contractual entitlement and reasonableness. They cited the Employment Appeals Tribunal case Harkin v Guinness Storehouse Ltd in support. They stated that there must be a breach of an essential term of the contract which goes to the root of the contract and it must be reasonable for the employee to resign because the employer has acted so unreasonably that the employee could not be fairly expected to put up with it any longer. In this case the Complainant alleges that he was constructively dismissed so was the Respondent’s conduct such that he had no option but to resign? Some of the matters that the Complainant is relying upon allegedly occurred between 2015 to 2017. They do not satisfy the test which requires resignation as a result of alleged conduct at that time. No complaint or grievance about these matters were ever made at that time. In 2019 after his son’s death the Respondent denies that there was any breach of an essential term of his contract. There is no contractual entitlement to bereavement leave and pay. The Complainant was given bereavement leave and was paid for it. In addition, he was granted leave and was paid, it was treated as annual leave. He was given a total of 15 days paid leave, of which 10 days were holidays despite the fact that he was only entitled to 8.75 days at that time. When he failed to return to work after the bereavement leave, he was not treated as misconduct under its disciplinary policy. No undue pressure or enquiry was made when he submitted medical certificates. After a period of absence in excess of three months the Complainant contacted the Respondent and sought redundancy and advised that he was resigning. There was no redundancy opportunity in the company at that time. Eventually the Respondent accepted his resignation. Therefore, they did not act unreasonably and so there was no justification in resigning his position. The claim is rejected. |
Findings and Conclusions:
Definition of constructive dismissal Sec 1(b) of the Unfair Dismissals Act states, “the termination by the employee of his/her contract of employment with his/her 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”. I find that in a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition, there must have to be something wrong with the employer’s conduct. I note that in Berber v Dunnes Stores 2009 ELR 61 Finnegan J stated: “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 as such that the employee cannot be expected to put up with it”. It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve their grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair” I note that in Tierney v DER Ireland Ltd UD866/1999 it stated, “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”. I note that in Murray v Rockavill Shellfish Ltd [2002] 23 ELR 331 the EAT stated, “It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”. I note that in the EAT case UD142/1987 Beatty v Bayside Supermarketsit stated,“The Tribunal considers that it is reasonable to expect that 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 Ltd 474/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was not constructively dismissed”.So, I find that as set out in the above cases for a Complainant to succeed he must establish that the conduct of the Respondent was such that he had no option but to resign his position. I find that in the instances he referred to ranging from 2015 to 2018 no formal complaint was made. In fact, all but one instance the Complainant stated that he did not make a complaint. I note that in the case of the Eastern location station the Respondent stated that they had no record of any matter being raised by the Complainant. I find that even if there had been complaints made at those times it is clear that the Complainant did not resign his position then and there was no suggestion that he had contemplated resignation then. In 2019 the Complainant claimed that the Respondent company had failed to grant him bereavement leave. I find that the facts did not support that allegation. I note that the Respondent advised that their payroll system does not have the facility to show bereavement leave on the payslips. I find that the record shows that the Complainant received 15 days paid leave. I find that at that time he had only accumulated a holiday entitlement to 8.75 days. Therefore, I find that he did receive 5 days bereavement paid leave and a further 10 days paid holidays. Therefore, I find that the Respondent supported the Complainant in that difficult time, contrary to the Complainant’s allegations. Therefore, I find that the Respondent acted reasonably. I further note that they did not treat his continuing absence from 1st July as a matter requiring misconduct treatment under the absence policy. I do not uphold the Complainants allegation of unfavourable treatment that warranted his resignation. I also find that the Complainant failed to utilise and exhaust the grievance procedure, as is required and as stated in the above cases. I find that it is a requirement that an employee raises and exhausts the grievance procedure before they contemplate resignation. I find that there is an onus upon the employee to ensure that their employer was aware that they were contemplating resignation and that the employer was given every opportunity to address the grievances before the resignation. In this case I find that the Complainant did not make the Respondent company aware that he was contemplating resignation. I find that the Complainant did not raise a formal grievance and he failed to utilise it. I find that the Complainant was issued with a copy of the Grievance procedure in 2012 and later. Therefore, I find that the Complainant has failed to establish a case for constructive dismissal. I find that this claim fails. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the above stated reasons as set out in the Findings and Conclusions I have decided that this claim is not well founded and so it fails.
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Dated: 07-10-2020
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Constructive dismissal |