Complainant

Respondent

Anonymised Parties

A Delivery Driver

A Bakery Business

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-00034129-001

02/02/2020

The complainant started working as a delivery driver for the respondent’s bakery business in November 2006. On July 26th 2019, he submitted notice of his intention to resign and he left two weeks later on August 10th. He got a new job as a bus driver. He submitted this complaint under the Unfair Dismissals Act on February 2nd 2020. The complainant claims that he left his job with the bakery because of how he was treated by his employer. He said that after speaking with a solicitor, he decided to make a claim of constructive dismissal.

On the form he submitted to the WRC, the complainant set out the details of his complaint. In December 2017, the bakery lost a contract with a major customer and the complainant said that the managing director (“MD”) wrote to him suggesting that he might have to let him go. He wasn’t let go. Sometime later, the complainant said that the MD shouted at him in front of other employees because he suggested the price for a product.   He considered this to be bullying.   In 2018, the complainant said that he was paid for 35 hours a week, instead of 40 hours that he should have been paid for. He said that this resulted in a shortfall in his wages that year of €2,112. He said that he was instructed to drive “without hitting the van” and that he had to clean the windows of the van for six months.

On April 3rd 2019, the complainant said that he was sent home after working for two hours, although he claims that there was still more work to do. He decided then to look for a new job. When he left his job on August 10th 2019, the complainant said that he wasn’t paid for the holidays that he was owed.   At the hearing however, he agreed that he had received all the outstanding payments he was owed.

The complainant said that everything was good in his job up until 2017, when the company lost the contract with a significant customer. By 2019, he was doing packing as well as deliveries and he helped the kitchen manager in the evenings.

When I outlined to him the redress options open to me under section 7 of the Unfair Dismissals Act, the complainant said that the was happy in his new job and that he was earning more than he earned with the respondent. He said that he made this complaint “on principle, not money.”

The complainant agreed with the MD when he said that he had tried to buy the business from him.   He said that this didn’t work out because the MD didn’t agree to sell.

In his submission to the WRC, the complainant included a copy of an email he sent to the MD before he resigned, seeking payment for 163 hours for which he claimed he was not paid in 2018. He also included a copy of an email he sent to his SIPTU representative concerning an altercation between him and the MD on June 25th 2019. The complainant’s final issue with his former employer is that from March 9th 2018, until he left, he said that he didn’t get any payslips.

The MD said that in November 2017, the company lost a contract to supply pastries to a café business with a number of retail outlets. He said that he wrote to all his employees, explaining the impact of losing the contract and alerting them to the possibility of being let go. A copy of this letter addressed to “Dear Colleagues,” was submitted in evidence. In paragraph three of the letter, the MD states,

“It is unlikely that we will be able to avoid a reduction in working hours for staff… I am in the process of looking at how the production of remaining items can be shared out more equitably amongst staff members.”

Following discussions with the complainant regarding the effect that the loss of business was likely to have on him, the MD said that he wrote to him on November 29th 2017, setting out the position. He explained that deliveries would be reduced from 15 to 20 locations per day to only two on some days. The MD said that he would look for other work for the complainant.

From November 2017, the complainant’s hours were reduced from 40 to 33 per week, with a commensurate reduction in his wages. From then on, the MD said that it was “difficult to engage” with him. However, while the need for deliveries was reduced, the complainant was assigned to other work in the kitchen and on preparing orders. In 2018, his hours went up to an average of 37 hours a week and in 2019, he worked an average of 39 hours a week.

The MD said that he was being treated for cancer in 2018 and 2019, but he was still trying to keep the business going. He said that he phoned the complainant around 7.00am one morning. He said that he phoned the bakery and he also tried to contact him on his mobile phone. He wanted to let him know that a customer had ordered a cake and that it had to be put in the van. When the complainant didn’t answer, he had to leave his house and deliver the cake himself, despite not being well. When the complainant was back at the bakery, the MD let him know that he wasn’t pleased that he didn’t answer his phone. Although the dates are not clear, it seems that this was the incident in June 2019 that the complainant said resulted in his decision to look for another job.

In documents he submitted to the WRC before the hearing of this complaint, the MD included the complainant’s letter of resignation dated July 26th 2019. The letter states:

“This letter confirms my resignation from (name of the employer).

“I have accepted an offer from another company. My last day of work will be Saturday, August 10, which is two weeks from now.

“My experience of working with (name of the employer) has been good. I appreciate having the opportunity to work with the wonderful staff. I will be very happy to help someone new to do my job.

Regards…”

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The issue for decision in this case, is, taking into consideration the conduct of the respondent in relation to this former employee, was it reasonable for him, or was he entitled to terminate his employment?

The Reasonableness of the Employee’s Decision to Resign

I observed at the hearing that the complainant and the respondent were reasonably familiar and civil with each other. It emerged that the complainant is the partner of the MD’s niece who works in the business and they have two children. For the duration of his employment, the complainant had personal use of the company van, at no cost to himself. He proposed buying the business, and when this didn’t work out, it seems that relations may have soured somewhat, although they both recognised that they have a family connection and there appeared to be no discomfort around that.   The respondent’s business was dealt a considerable blow in November 2017, with the loss of a confectionary contract; however, the complainant was given other work and the effect on him was a small reduction in his weekly hours. In 2019, his hours were back up to 39 per week.

In June 2019, it seems that the MD was annoyed when he attempted to contact the complainant by phone, without success. He didn’t hide his annoyance when the complainant was back in the bakery and he shouted at him in front of three other employees. The complainant decided to look for another job. It is clear to me that what occurred on that day was a robust exchange between two adults who were well known to each other from a business and family perspective. I find no correlation between this altercation and bullying, where one person is intent on undermining or intimidating another.  

The complainant said that he was a member of SIPTU and he also consulted a solicitor, yet he didn’t enlist the help of either to support him to deal with his perceived poor treatment by his employer. He also complained about non-payment of wages and the MD’s failure to issue him with payslips, both matters which could easily have been resolved with the help of his union. He didn’t seek assistance to resolve these matters either. At the hearing, it emerged that the issues regarding wages and payslips have been resolved.

When the complainant raised his concern about his job in November 2017, the MD assigned him to duties other than deliveries, so that he could work as many hours as possible.   It seems therefore, that the respondent could be relied on to address any grievance that the complainant might have had regarding his employment. Apart from the heated conversation in June 2019 when the complainant didn’t answer the phone, I have not been able to identify any specific grievance, aside from his failure to buy the company, that the complainant can point to that was a contributing factor in his decision to leave his job.  

The reasonableness of an employee’s decision to terminate her employment was considered at the Employment Appeals Tribunal (EAT) in the case of McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal concluded that:

“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 or her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.”

The complainant gave two weeks’ notice of his intention to resign and he left two weeks later. If his employer’s treatment of him was so difficult to tolerate, it is unlikely that he would have worked out his notice.   He had worked in the bakery as a delivery driver for 13 years. The final two years had been difficult from an economic perspective. He considered buying the company, but his offer was rebuffed. He then found a better job, with higher pay. It is my view that all of these factors outweigh any assertion that it was the behaviour of his employer that resulted in the complainant leaving his job.  

Findings

It is well established that the burden of proof required in cases of constructive dismissal is a high bar for a complainant. To succeed, they must show that they made efforts to resolve any difficulties they experienced at work. They must tell their employer what the problem is, so that the employer can take action to resolve the issue. This approach worked in November 2017 and I am satisfied that it would have worked again in 2019.

It’s clear from the complainant’s evidence that he had become less happy at work from November 2017 onwards. He was perfectly entitled to resign if he wanted to improve his prospects. To succeed in a complaint of unfair dismissal however, the complainant must demonstrate that his employer has inflicted a fundamental breach on his contract of employment or, has acted so unreasonably, that he had no alternative but to resign. The complainant’s evidence does not meet these tests.

In conclusion, I find that the complainant has not made out the standard of the burden of proof required that demonstrates that the conduct of his employer was such that he had no alternative, but to leave his job.

On this basis of the findings set out above, I decide that this complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal