Complainant

Respondent

Anonymised Parties

An Employee

A Limited Company

Representatives

  Self

Rebecca De Groot Peninsula

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-00040623-001

26/10/2020

The Complainant alleges he was constructively dismissed by the Respondent following a series of grievances raised which were unsatisfactorily dealt with.

The Complainant commenced his employment with the Respondent on 19th March, 2019. The Complainant outlined in detail a number of issues he had during his employment. In addition, the Complainant submitted 5 audio records into evidence. The issues outlined during the hearing were as follows:

1.       The Complainant was required to operate machinery that he was not trained or qualified to operate. The Complainant raised concerns about loading the truck during the course of a meeting.  He said that he hadn’t been trained to do it. He was told that it was common sense and that all he needed to do was to get a piece of timber, 300mm, “ its fucking simple to use it”. He asked that that be put in the notes of the meeting. The Operations Manager replied      “put it in the notes that my 6 year old daughter will show him what to do”.  There was an issue between the parties in relation to what should and should not be in the notes. The Complainant refused to sign the notes of the meeting because he said that they were not accurate. The complainant has submitted an audio recording of the meeting.

2.       At the meeting that took place on 25th August 2020 the Complainant tried to outline serious concerns in relation to both health and safety and the working time directive. When he was doing so he was made fun, was bullied and false accusations were made to him by the director. He was sworn at during the meeting and accused of being aggressive to the point where others felt intimidated.  He asked if that could all be recorded in the notes. Both parties made suggestions as to what should be put in the notes. The Complainant left that meeting. As a result, he had to go out sick for three days. The Complainant has submitted an audio recording of that meeting.

3.       After the Complainant returned from sick leave on 31st August 2020 he had a conversation with the Director wherein false accusations were made against him in relation to him getting agitated.  The Complainant submitted an audio recording of that meeting.

4.       On 2nd September the Complainant served a letter headed “notice of degrading conditions” on the Respondent.  Therein he raised concerns about his role since the company took on haulage work, working time act, rest, nightwork, health and safety and false allegations of aggression. He outlined his concerns about how the meeting of the 25th was conducted.

5.       At the meeting that took place on 3rd September about the concerns raised on the 2nd September, he was asked about his bathroom habits and asked why he couldn’t take a break while doing other work. He was asked why he stopped the lorry on a few occasions.  It was obvious that the Respondent was spying on the Complainant by using a tracker. There is no mention of a tracker in the contract of employment.

6.       An additional issue in relation to the reporting of defective tyres was raised.  The Complainant alleges that his concerns were not taken seriously and that he was requested by a Respondent to drive a lorry that he says was unsafe to do so and if he had been stopped by the authorities it was him who would have suffered the consequences and not the Respondent.

7.       The Complainant raised concerns in relation to him having to reverse his lorry into the Respondent’s yard at night without an appropriate spotter being present. He requested a Risk assessment. He never received it. He was however reprimanded for carrying out the manoeuvre the way he did which he was told only went to demonstrate his inexperience. He was given instructions how to carry out the task. The Complainant did not agree with those instructions. He informed the Respondent of that. He felt that as a result he was leaving himself exposed to prosecution.

8.       The Complainant raised issues about the Covid -19 situation. He said he was not given any guidelines. He had no access to PPE, hand sanitizer, hand washing facilities or training. He had concerns about the alcohol content of the hand sanitizer being absorbed into this blood stream.

9.        He raised concerns about his statutory rest breaks and working hours.  

In summary, none of the Complainant’s complaints were taken seriously. He was requested to drive in circumstances that could lead to prosecution. His statutory rights in relation to working time were breached.  He was belittled and was falsely accused of being aggressive. He was put at risk in relation to Covid-19.  He had no option but to resign.

The Complainant was employed as a driver for the Respondent from 19th March 2019 until he resigned on 5th October 2020.

The Complainant lodged 6 separate complaints all of which, save for the Unfair Dismissal act claim, were filed prior to his resignation.

The Complainant following commencement of his employment with the Respondent picked up his contract and returned the executed version of same to the Respondent on 13th May 2019. As is set out in his contract, he was employed as a fully qualified artic lorry driver. As such the Respondent expected a certain level of skill, competence, independence and experience from the Complainant.

The Complainant lived in Gorey. The Respondent’s premises where in Wexford. The Complainant asked the Respondent if he could keep the lorry he was driving at his home place, to save him having to drive to Wexford every day to collect the lorry and leave it back in the evenings. Mr D agreed with the Complainant that he could keep the Respondent’s truck at his home. This agreement was actually beneficial to both the Complainant and the Respondent as it would save on driving hours and diesel expenses as the Complainant lived approximately 40 minutes from the Respondent’s premises.

The Complainant alleges that he was required to operate machinery that he was not properly trained for. That is categorically denied by the Respondent who in response states that the Complainant was never asked to operate any machinery that he was not fully qualified to operate. Furthermore, the Complainant was sent by the Respondent to carry out a lorry mounted forklift course and he completed that course on 11th October 2019.

Due to the Covid-19 pandemic the Respondent was forced to close the business temporarily from the 16th March 2020. Just prior to that, on the 12th March 2020 all of the employees of the Respondent were sent covid-19 guidelines and policy. All of the Respondents staff where temporarily placed on layoff and were therefore eligible for the pandemic unemployment payment.

During the month of April there were several text message exchanges between the Complainant and the Operations Manager in relation to potential business opportunities. Also, the Complainant was anxious to know when he would be starting back to work.

On 30th April 2020 the Operations Manager in response to a back-to-work request from the Complainant sent him a link to carry out a c19 induction program. This program was run by the construction industry federation and its aim was as follows:

The  C- 19 induction programme is designed to protect you your family and your community whilst allowing you to work safely. Its purpose is to ensure that everyone working on a construction project understands how to prevent the spread of covid-19 in the workplace.

The Complainant completed the online induction programme on 30th April 2020 and he sent proof of same by text message to the Operations Manager. On 11th May 2020 the Complainant sent yet another text message to the Operations Manager enquiring as to when they would be starting back to work. He was informed that the Operations Manager had a meeting with all of the management team about the reopening of the business the Complainant replied by text message saying "cool looking forward to going back to work for the rest."

The Complainant text again on 15th May 2020 in relation to the reopening of the business. He was informed by the Operations Manager that the Respondent was waiting on the Taoiseach to make an announcement and after that announcement was made the Operations Manager informed the Complainant that they would be back up and running the following Monday.

The business reopened on 18th May 2020. All staff were provided with personal protective equipment which included facials and hand sanitizer.

Following the reopening after the countrywide lockdown the Respondent started accepting jobs from one particular haulage company.

On 3rd July 2020 the Operations Manager received correspondence from the haulage company about a job for Monday 6th July 2020. That job required a pick up from Rosslare port to be delivered to Dublin for 8 a.m. then reload and to deliver the reloaded trailer to Edenderry. The Operations Manager sent the trip sheet to the Complainant at 16:21 on 3rd July 2020.

The Complainant replied by way of text message stating that he would "be moving before 4 a.m."  which would technically make him in night worker and that would attract limitations in respect of his working time. The Operations Manager phoned the Complainant and informed him that the trip would not require him to be moving before 4 a.m. and that he was instructed not to be moving before 4 a.m. That call was made on 3rd July 2020 at 16:53.

The Complainant completely ignored the instructions given to him by the Operations Manager and instead started working at 3:49 on 6th July 2020. He arrived at his required destination at 7:28 which indicates that the Complainant could have started working after 4 a.m. and still made his destination by 8 a.m.

On the 24th of August 2020 the Complainant sent an email to the Operations Manager requesting a meeting with him in order to discuss some ongoing queries raised by the Complainant in respect of his driving times. That meeting took place on 25th August 2020. Present at the meeting was the company director, the Operations Manager and the health and safety manager. The health and safety manager was merely in attendance to take notes. The Complainant stated that he was refusing to work long hours going forward. That was accepted by the Director who agreed with the Complainant that he should not work long hours and was directed not to work for more than 50 hours per week.

The Complainant also voiced concerns in relation to a handle falling off a trailer. He stated that he had contacted the Operations Manager to report the incident. The Operations Manager recalls the event and also recalled telling the Complainant that it was unsafe and that he could not proceed with the work he was doing that day. They complain and fix the handle himself and continued working on despite the instructions given to him by the Operations Manager.

The Complainant left the meeting happy with the outcome. The Complainant is now stating that at tempers were flared during this meeting and that he was sworn at by the Operations Manager. The Respondent does not deny that there was swearing at the meeting, but it is the Respondents position that all parties including the Complainant were swearing but nobody was swearing at any one specific person but rather it was during the flow of conversation.

Following this meeting the Complainant produced a medical certificate stating that he was suffering from an acute illness and was unable to attend work from 26th August 2020 until 30th August 2020.

When the Complainant returned to work the Operations Manager sent him an email in relation to his trip sheet for 1st September 2020 the email stated:

" please find trip sheet attached for tomorrow's work lorry needs to be at first drop off point in balbriggan for 9 a.m. we will assess the route tomorrow weather all of the deliveries and collections are able to be completed within your driving hours if they are not I will ring haulage company and explain only some of them can be completed"

The Complainant voiced no concerns over his driving hours after receiving the trip sheet.

On 2nd September 2020 the Complainant emailed both the Directorand Operations Manager voicing a number of concerns. Those concerns were in relation to alleged excessive hours being worked and also in relation to an issue with the Complainant reversing the truck into the Respondents yard without being provided with a spotter. It should be stated that the Complainant had been reversing the truck into the Respondents yard without a spotter since March 2019 without issue.

The Director replied directly to the Complainant in relation to the reversing issue. He outlined a more appropriate way of carrying out the manoeuvre which he stated had worked well for all the other employees. The Complainant was invited to attend a meeting with the Director and the Operations Manager so that he had an opportunity to voice his concerns in relation to any issues he had.

The Respondent has a policy to deal with any concerns that any employees have any prompt and efficient manner.

It then came to the Respondents attention that the email that was sent from the Director to the Complainant in respect of the reversing issue had been posted on a social media platform under the profile of someone identifying as John McGrath. The person who identified as John McGrath also had posted a printout from their tachograph that appears to be identical to the same working hours of the Complainant on the day the Complainant raise concerns about his driving hours. The same person also said that they had attended an interview for another position while on company time in a separate post.

As there appeared to be a breach of the Respondents email system the Operations Manager invited the Complainant to attend an investigation meeting on 4th September 2020.

The Complainant responded by stating he would be "most happy to attend any meeting" on the provision that a demand list be met by the Respondent.

The Complainant also raised a concern regarding the tyres on his truck. The Operations Manager confirmed to him that they were safe to continue to drive on and booked an appointment in Sandyford for the tyres to be changed regardless.

The Complainant never attended the investigation meeting but went off on sick leave for 2 weeks and then had annual leave for a further two weeks.

On 2nd October 2020 the Friday before the Complainant was due to return to work the Operations Manager emailed him asking him if he was feeling better and returning to work as schedule on 5th October 2020.

The Complainant replied by return stating “I hereby give my notice of resignation with immediate effect please forward my final holiday pay and P45”.

That resignation was accepted by the Operations Manager on the same date.

The Complainant lodged his constructive dismissal claim with the workplace relations commission on 26th October 2020.

The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.

Section 1 of the Unfair Dismissal Act defines constructive dismissal 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 the 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”

7.—(1)

Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before  his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

The burden of proof, which is a very high one, lies on the complainant. He must show that his resignation was not voluntary.  As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“if the employer is 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”

If I am not satisfied that the “contract” test has been proven, then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“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 importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”.

The complainant raised several issues /concerns about his terms and conditions of employment together with some Health and Safe concerns and allegations that were being made against him by his superiors.  Some of those concerns were raised verbally and some were sent by way of e-mail or text message.

The complainant when he commenced his employment was given a contract of employment together with a company handbook. Therein a comprehensive grievance procedure is set out. It states:

Informal process

If you have a problem or grievance relating to any aspect of your employment with the company, you should first discuss it on an informal basis with your manager. If your grievance is of a kind that you feel unable to raise it with your manager, you should raise the matter with a more senior manager who will endeavour to deal with your grievance as soon as is reasonably practicable. However, if it cannot be dealt with informally the formal process described below will be followed:. 

Step 1.

Raise the grievance with your manager explaining that you wish to use the formal grievance procedure. Your manager will arrange a meeting with you to discuss the matter and will listen to your concerns. If the grievance is of a kind where you feel unable to raise it with your manager, you should discuss the problem with another manager at the same level. In many cases the matter will be resolved at this initial meeting.

Step 2

If the matter is not resolved to your satisfaction under step 1 you are encouraged to raise the matter with the next level of Management by providing a written statement outlining the nature of the grievance. The reviewer will consider the information presented and you will be given an opportunity to discuss the issue. Following the meeting the reviewer will come to a decision or make a recommendation possibly after consulting with appropriate members of management. The decision will then be communicated to you in writing. At step 2 you will be given a hearing within five working days of the request and final written response within a further 5 working days were possible.

Step 3

If you are not satisfied with a decision or recommendation made at step 2 you may then proceed to step 3 by notifying in writing the next level of management who has not previously been involved in the process.

Your request should set out the details of the problem and provide any other relevant information including the reasons why you are dissatisfied with the previous outcome. 

 It is clear from the both the Complainant’s and the Respondent’s evidence that the Complainant did not invoke the grievance procedure. Whilst he did raise concerns with the Respondent he did not ever state that he wished to invoke the “formal grievance procedure”.  The Complainant demonstrated during the hearing that he was fully ofay with his statutory rights and went to the trouble of recording all of the meetings he had with the Respondent, presumably in anticipation of using them as evidence at this hearing. He outlined to the Respondent on numerous occasions examples of what he believed were breaches of his statutory rights. However, despite his thorough approach to ensuring his terms and conditions of employment were adhered to, he failed to invoke the procedures very clearly set out in his contract in order to have those grievances dealt with.  No explanation was given as to why he failed to do so and there was no suggestion that to do so would be a fruitless exercise. In doing so he denied the Respondent the opportunity of formally dealing with his concerns.  In those circumstances, I find that the complainant has failed in his obligation to exhaust the internal process prior to filing his claim with the Workplace Relations Commission. Accordingly, his complaint fails.

The complaint fails.