Complainant

Respondent

Parties

Eddie  Byrne

Secto Services Limited

Representatives

IBEC

Act

Complaint

Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00040615-001

25/10/2020

The complainant commenced employment with the respondent on March 4th, 2019 as a ‘Build Manager’.

The complainant says his employment was terminated by way of constructive dismissal.

The respondent says that on June 30th 2020, the complainant resigned and his employment came to an end on 31st July 2020 in line with the notice tendered by him.

A preliminary issue arose on relation to the nature of the complaint referred for adjudication.

On the on-line complaint form the complainant had identified his only complaint as arising under the Minimum Notice and Terms of Employment Act, 1973.

However, he intended his complaint to be of one of constructive dismissal and this was how the complaint was described in the section of the WRC Complaint Form; ‘Complaint Specific Details or Statement’.

It was agreed to treat this as a preliminary issue.

The parties were heard on the issue at the hearing and offered the opportunity to make further submissions after the hearing, on both the preliminary and the substantive issues.

The hearing proceeded on the substantive issue.

It was agreed that, following receipt of the further submission on the preliminary issues, if the need arose for a further hearing of any new material not covered at the hearing, or which otherwise required it, the Adjudicator would confer with the parties with a view to a resumption of the hearing.

However, if nothing further arose requiring a resumption the Adjudicator would proceed to a Decision having heard both parties on both the preliminary and substantive issues.

The respondent made an extensive submission on the jurisdiction issue after the hearing and it is considered below. The complainant made no further submission.

The decision on both issues appears below in the Decision section.

The complainant submitted a complaint against the respondent under the Minimum Notice and Terms of Employment Act on 25th October 2020.

The respondent was notified of this complaint on December 7th, 2020.

The respondent was then notified of a hearing under that Act on May 4th, 2021. This correspondence stated that the complaint to be heard would be under this legislation.

In the "complaint area" was "Minimum Notice" and the "Redress’ was specified as "Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice and Terms of Employment Act, 1973".

The respondent attended the hearing as scheduled on 26th May 2021 having made a submission to the WRC under that legislation. At that hearing, the complainant sought to pursue a complaint under the Unfair Dismissals Acts.

The respondent objects to any such amendment of the proceedings on the following grounds.

The Workplace Relations Act 2015 sets out in Section 41, that:

An employee (in this Act referred to as a "complainant") or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1lor 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an Adjudication Officer.

(2) An employee or an employer (in this Act also referred to as a "complainant") or, where the complainant so consents, a specified person, may refer a dispute as to the entitlements of the employee under an enactment specified in Part 3 of Schedule 5 to the Director General, and, where a dispute is so referred, the Director General shall, subject to section 39, refer the dispute for adjudication by an adjudication officer.

Schedule 1 of the Workplace Relations Act 2015 lists Acts of the Oireachtas which fall with the remit of the WRC. The Unfair Dismissals Acts 1977 to 2015 and Minimum Notice and Terms of Employment Act 1973 are clearly listed as separate Acts of the Oireachtas.

The WRC has provided a complaint form on its website which the complainant completed and submitted to make his complaint. The Guidance Notes for this form state;

‘A complainant will be asked to indicate the general area within which the complaint falls (e.g. Pay, Hours of Work, Equality, Pensions, Redundancy, Industrial Relations etc.)’.

The complainant in this case completed the document electronically. This enabled the Complainant to select various claim options in the available drop-down lists.

On the form he submitted, the complainant selected the "Minimum Notice"; he did not select "Unfair Dismissal".

This then prompted a second drop-down box to appear asking the complainant to select "the Minimum Notice Type". The complainant selected; "I did not receive minimum notice of termination of the contract of employment from my employe(r)".

This would have been an opportunity for him to amend his claim form had he selected "minimum notice" in error. Furthermore, under "Selected Redress Option" the Complainant selected "Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice and Terms of Employment Act 1973".

It is inconceivable that the complainant mistakenly selected the incorrect type of claim three times on his complaint form. It is further inconceivable that the complainant then did not realise his alleged mistake, either when he received confirmation of his claim having been submitted, when he received notice of the respondent's representative, or when he received notice of hearing.

While the respondent is not privy to how much correspondence the complainant received in relation to his claim, we estimate that he received a minimum of three such correspondence since he submitted his claim form, all of which would have referred to the "Minimum Notice and Terms of Employment" Act.

While the "Complaint specific details" makes reference to constructive dismissal, it also refers to the fact that after the Complainant's resignation he sought to withdraw same.

Thus, it was assumed that the complainant mistakenly believed that was owed notice from a later date. At no point was the respondent on notice that the complainant purportedly intended his entire claim to be heard under the Unfair Dismissals Acts, particularly given the fact that references to minimum notice appear three times on the claim form as outlined above.

The complainant's request is that the Adjudicator amend the legislation on the existing claim form, submitted on 25th October 2020, from the Minimum Notice and Terms of Employment Act to the Unfair Dismissals Acts.

The Adjudication Officer is only empowered to do under Section 41(16) of the Workplace Relations Act, which enables an adjudication officer to

"correct any mistake (including any omission) of an administrative or clerical nature in a decision under this section in relation to that complaint or dispute."

However, the respondent says that what is at issue does not constitute a mistake "of an administrative or clerical nature" for the reasons set out above. It is simply not credible that such an error would appear three times on a claim form and in multiple correspondences

 Any such amendment would undermine the respondent's right to natural justice.

Regarding time limits, the respondent submits that the first occasion on which the complainant articulated an intention to pursue a complaint under the Unfair Dismissals Acts was on 26th May 2021, eleven months after he tendered his resignation, and ten months after his employment with the Respondent ended.

No such claim is currently before the WRC as none has been submitted by the complainant and in any case, any such complaint now made would be outside of the six month statutory timeframe within which Unfair Dismissals claims must be brought.

The respondent submits that ignorance of the law is no excuse in this regard.

In Department of Foreign Affairs v Patricia Cullen (EDA 116) the Labour Court ruled on the preliminary issue relating to time timeframe over which a Complainant can rely on alleged acts of discrimination and whether or not the Court can consider a claim of victimisation which was made during the course of an Equality Officers investigation.

In essence the matter relates to whether or not the complainant can raise issues which occurred more than six months before the within claim was submitted to the Equality Tribunal.

In its ruling the Labour Court refers to County Louth Vocational Education Committee v The Equality Tribunal [2009] IEHC 370. The Labour Court cites the judgement of McGovern J:

'I accept the submission on behalf of the respondent that the Form EEl was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EEl, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.'

The Labour Court expanded:

'The fundamental principle adumbrated by the Judge is that, by analogy with the practice in civil proceedings in the ordinary Courts, a complainant should be permitted to amend his or her original claim where the justice of the case requires it. McGovern J did, however, add an important qualification to this general principle in pointing out that an amendment can only be made where the general nature of the complaint remains the same.[Emphasis added]

In that case, the complaint was one of discrimination on grounds of her sexual orientation. The new complaint was of victimisation for having brought her original complaint. That, in the Court's view, is an entirely different complaint than that which had been made originally.'

The respondent submits that that the claim submitted in the original complaint was under the Minimum Notice and Terms of Employment Act and it was clear from correspondence sent from the Workplace Relations to both parties that this was the understanding of both the Workplace Relations Commission and the parties. It cannot be said that the amendment sought by the Complainant is within the "general nature" of the claim form submitted.

The Unfair Dismissals Act is an entirely different piece of legislation, with different types of redress, and provisions regarding the burden of proof and consequently no amendment should be allowed. This cannot be regarded as an administrative amendment to the complaint.

The respondent further refers to ADJ-17755, in which the complainant's original complaint form was submitted to the WRC under the Equal Status Acts.

 At the hearing the complainant sought to amend same in favour of pursuing an Employment Equality claim. The Respondent argued that it was not on notice of any such claim. The Adjudicator found in favour of the Respondent and ruled that the complaint was misconceived.

The complainant failed to file a claim under the Unfair Dismissals Acts in the original claim form or within the six-month time frame permissible by the legislation. The Unfair Dismissals Acts and the Minimum Notice and Terms of Employment Act are entirely different pieces of legislation.

It cannot be argued that such an amendment to the claim form would not alter the "general nature" of the claim. To allow such an amendment would set a dangerous precedent for future cases.

The legislative timeframe to pursue an alternative claim has been exhausted.

The complainant says that it was always his intention that the complaint should be one of constructive unfair dismissal and that this is clear from the detail he put on the complaint form.

I do not uphold the respondent’s objections on the preliminary issue to a hearing of the constructive dismissal complaint and my reasons are set out below in the Findings and Conclusions.

The complainant says his employment was terminated by way of Constructive Dismissal,

Secto Services Limited was in negotiation with a third party, SK Utilities (the transferee) to outsource part of its maintenance and rigging business and the complainant was due to be transferred under TUPE Regulations to that company to manage an element of the transfer. 

He says he was requested to hand in his notice on June 30th, 2020 and did so, (but under protest as a contract had not been signed). He also protested over how other aspects of the transfer were being handled.

On July 24th, 2020 he was notified by the transferee that the contract to transfer was not agreed and did not look likely to be signed for some time. As a result, that company would not be in a position to take him on as agreed on August 3rd, 2020.

The complainant then sent an email to the respondent indicating his intention to withdraw his resignation with immediate effect. This was copied to the HR Director and another senior manager, but he did not receive any reply.

On August 3rd he commenced employment with the transferee although he was very reluctant to do so as no contract had been yet signed. He was able to charge his time back to the respondent as they still required his services.

This lasted about three weeks and the arrangement ended.

The transferee retained him in employment until the end of September and at that stage the respondent gave him one week’s notice and terminated his contract at the end of September.

The Contract between the respondent and the transferee was still not signed by the end of September 2020. And eventually on October 10th the deal fell through.

The complainant has no grievance with the transferee as he feels they were a victim of circumstances.

The Complainant commenced employment with the Respondent on March 4th, 2019 as a Build Manager.

On 30 June 2020, the complainant resigned.

His employment with the respondent came to an end on  July 31st, 2020 in line with the notice tendered by the complainant.

During 2020, the respondent began negotiations with SK Utilities to contract out certain maintenance work. As part of this arrangement, seven employees would transfer to that company under the Transfer Regulations.

The complainant who was a Build Manager, was not in scope to transfer

Notwithstanding that, he separately and independent of any negotiations involving the respondent, received a job offer from the transferee and notified the respondent of this.

On June 30th, 2020, the complainant advised the respondent of his intention to resign giving one month’s notice, with the last day in employment being July 31st, 2020 (The resignation letter was submitted in evidence).

The respondent's understanding is that the he had accepted the job offer from the transferee.

On the July 1st, 2020, the respondent HR Director, replied by email and acknowledged receipt of the resignation letter (also submitted in evidence.)

The complainant again wrote on  July 3rd saying to the HR Director that he felt aggrieved arising from a prior conversation he had had with her, in which she informed him of a potential upcoming temporary layoff situation in the company.

He stated that he felt that had he not resigned his role would have been terminated. She responded as follows;

‘I gave you a very detailed understanding of the lay-off position that Secto was in, the criteria that was being used to select for lay-off and reiterated a number of times that we did not want to be in a position to choose anyone for lay-off as we value you very highly. You asked for clarification on your service and I gave you the details of both your own service and that of the other Build Managers.

This was also following a conversation that you had with Paul It's true that had you not handed in your notice, I told you that we would have to progress with a lay-off but I also stated very clearly that any agreement you were making with Paul on any new venture was outside of anything that I had knowledge or details on and furthermore stressed that any lay-off position would hopefully be short term (emphasis added} . As you have pointed out, the business levels have fallen and we can't sustain 4 Build Managers until those levels increase. The very nature of lay-off is that it's temporary and short term ."

Clearly it was not the case that had the complainant not tendered his resignation, (in other words had he remained) his role would automatically been suppressed.

Rather, the HR Director, as a courtesy, shared information relevant to the complainant with him regarding a potential layoff situation, based on the business situation that the respondent was in as a result of the Covid-19 Pandemic.

Furthermore, it was made clear to the complainant that any arrangement or agreement he made with SK Utilities was wholly separate to his employment with Secto Services.

The complainant did not indicate at that juncture that he would, prefer to remain in the employment of the respondent and instead continued to work out his notice period with a view to moving to SK Utilities.

On July 24th, 2020, the complainant wrote to the respondent CEO expressing his wish to withdraw his resignation on the basis that SK Utilities had informed him that his role was ‘no longer available". (Request for withdrawal of resignation letter submitted in evidence).

The CEO contacted the complainant to discuss this but did not accept the request to withdraw the resignation.

The role offered to the complainant by SK Utilities was unrelated to the work that the respondent was considering contracting out to that company.

In fact, the draft agreement between the two companies was very specific in relation to which employees would transfer and the complainant’s name was not included.

The respondent further understands that the complainant did work for a period of approximately three weeks with SK Utilities after his notice period with the respondent expired and that this subsequent employment relationship then terminated for reasons unrelated to the respondent.

Furthermore, it is worth noting that negotiations between the respondent and SK Utilities continued into October 2020.

On July 31st, 2020, the complainant received his last payment from the respondent. This shows that he was paid appropriately for his notice period per his contractual notice. Furthermore, his contractual notice period exceeded the notice he would have been entitled to under the Act.

The complainant tendered his notice on June 30th, 2020 and worked the entirety of his contractual notice period, his last day of work being July 31st, 2020.

The respondent notes that he had been in its employment for less than two years and thus would have been entitled to one week's notice under the Act per the above. The notice period worked by him exceeded this period and he was paid in full for same.

However, this issue is moot in circumstances where Section 4 only applies when the employment is terminated by the employer. In this case, it was the complainant who tendered his resignation. The claim is therefore misconceived on these two grounds.

The respondent submits that the claim must therefore fail. This point is reflected in Joanne Mahony v Euroceltic Airways Limited MN2298/200. In that case the EAT held that"the Tribunal does not have power to award in excess of the statutory minimum entitlement"

In "A Mechanic v A Truck Rental Company" (ADJ - 00022890} the Adjudicator Officer held:

"I find that the complainant walked off the job and in doing so resigned his position with the company ... As I find that the complainant resigned his position and no dismissal took place, I find there is no breach of the Minimum Notice & Terms of Employment Act, accordingly this claim fails"

On the basis of these submissions the claim is misconceived and must fail.

Preliminary Issue.

The respondent referred above to the decision in County Louth Vocational Education Committee v The Equality Tribunal [2009] IEHC 370.

The Labour Court cites the judgement of McGovern J:

'I accept the submission on behalf of the respondent that the Form EEl was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EEl, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.'

The complaint form is a non-statutory form, although it is the means by which a complainant communicates the essence of his complaint; sometimes it is the only information about the complaint that is before a hearing.

The critical criterion expressed in the quotation above is ‘where the justice of the case requires it’ it should be permissible to amend a claim ‘as long as the general nature of the complaint remains the same’. 

In this case, the complainant selected the Minimum Notice and Terms of Employment Act, 1973 as the legislation under which his complaint fell to be dealt with, or at least such part of it as related to notice as he intended to pursue.

However, in the section immediately following he continues;

'Just to outline my grievance in relation to this application on grounds of Constructive Dismissal…..'

It is quite clear from the rest of this text, which contains no reference to the non-payment of notice, that the grievance referred to the Adjudication service related to the termination of the complainant’s employment.

The ‘general nature of the complaint’ therefore is not the matter of notice, as suggested by the respondent which in any termination is a mere detail, but the termination itself.

This is clear from any reading of the section on the complaint form headed ‘Complaint Specific Details or Statement’ and this must be read as part of the complaint, and not just the section above it, in order to meet the requirements of the justice of the case.

An equally critical factor in such a case, looking at it from a respondent’s right to natural justice, is that there should be no kind of ambush, where a respondent might be taken by surprise and unable to present its case.

In such a circumstance, quite different principles apply. At the very least a respondent would be entitled to the opportunity to prepare its case and to address issues, facts or evidence of which it had not been on prior notice.

There may even be an issue as to whether a complaint has been properly lodged at all on such facts.

However, these are not factors in the current case.

The respondent was represented by an agency which is immersed in both legal and industrial relations issues and would clearly have understood the issue it was facing in preparing for the hearing.

If evidence were needed of this fact, it is to be found in the comprehensive nature of its submission, made in advance of the hearing, which anticipated all of the key arguments relevant to a case of constructive dismissal.

There were no material aspects of the narrative on which the complainant relied which were not known to it in advance and it had a full opportunity to address them in the course of the hearing. The circumstances of the termination of the complainant’s employment are fully addressed in the respondent’s submission.

The respondent challenged the right of an Adjudicator to bring the complaint within jurisdiction by referring to the power in Section 41(16) of the Workplace Relations Act, which enables an Adjudication Officer to;

"correct any mistake (including any omission) of an administrative or clerical nature in a decision under this section in relation to that complaint or dispute."

While the respondent says the complainant’s action does not constitute a mistake "of an administrative or clerical nature" it overlooks the fact that the section of the Act quoted relates to a ‘decision’, which must be taken to refer to adecision of the WRC on a complaint or dispute referred for adjudication, not on the complaint form, and this objection is misconceived.

Also, despite the respondent’s incredulity about the repeated errors it alleges the complainant made, it is entirely possible that they derived from a lack of familiarity with the application process, and the interests of justice on these facts require that he be given the benefit of the doubt.

In summary, his inclusion of the phrase related to constructive dismissal is decisive in my finding as it represents a very clear statement of what his intentions were.

The respondent’s further argument about time limits is also misconceived on these facts as this is not, by virtue of my finding, a fresh claim.

However, I stress that this is very ‘fact specific’. It is easy to imagine the possibility of a belated attempt to introduce a fresh claim which would not be permissible in the absence of the sort of clear intention expressed by the complainant in this case 

Accordingly. I find, on the preliminary matter that the complaint is within the jurisdiction of a constructive unfair dismissal. 

Substantive matter.

The critical moment in the complaint occurred on June 30th, 2020.

On that date the complainant submitted a letter of resignation to the respondent. Despite his assertion that he was forced to do so, he offered no evidence of this at any stage, and there is none in the letter; indeed, the opposite is the case.

It contains the following text, for example.

‘I would be happy to meet with you at your convenience to discuss the transition of my duties to my successor.

I wish the company and all of its employees much success in coming years .’

There is no sense of grievance about his resignation evident from this.

It appears that he was not under consideration for transfer to SK utilities under the TUPE regulations.

While there was some reference to a possible lay off situation in a discussion with the HR Director, she has strongly disputed his assertion that the termination of his employment was being considered, and I accept her evidence on this point. Any proposed lay off was to be a short-term option, according to her reply to him on July 3rd.

This, therefore shifts attention to the attempt to withdraw the letter of resignation which took place on July 24th.

The timing is important as it was almost four weeks later. For that reason, it was not one of those ‘heat of the moment’ decisions; immediately regretted.

Indeed, it appears as if it related to the move to SK Utilities not working out as planned.

It is in that letter (July 24th) that one sees for the first time his allegation that he was advised the day before handing in his resignation that his position in the company was due to ‘be terminated anyway’.  But this is the comment referred to above which the respondent says, (and I accept) related to temporary layoff.

The Unfair Dismissals Act, 1977 and the resulting jurisprudence have set a high bar in relation to what will justify the termination of any contract of employment.

It is, after all, a breach of a legally binding contract.

When an employer wishes to terminate the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

The most common source of complaints under the Act is when an employer has terminated the employment, and the criteria referred to are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning.

In most, if not all cases an action for breach of the employment contract is unlikely to arise.

A different situation arises when an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

 ‘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 such that the employee cannot be expected to put up with it.’

 Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to require an assessment of whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment?

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

The EAT has made it clear in a series of decisions and followed by the Adjudication service that the requirement to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above).

On the facts set out in this case, the complainant does not come remotely close to satisfying any of these tests.

He has not supported with any evidence his case that there were circumstances which pressurised him to resign. Even, if he had been facing layoff or some other uncertainty it had not crystallised sufficiently on June 30th to require him to resign, and the tone of his letter confirms this.

He has provided no evidence of having done so under protest, or of what the protest he later referred to might relate to; there was no formal grievance submitted.

The respondent might well have reconsidered the resignation but was not obliged to do so. Its failure to do so, almost four weeks after the resignation is insufficient to turn that resignation into a constructive dismissal as are the other facts in the case.

The complaint of constructive dismissal is within jurisdiction but is not well founded.

Having regard to the facts as set out above, no entitlement to a notice payment arises either and that complaint is not well-founded.

For the reasons set out above complaint CA-00040615-001 is not well founded.

Amendment of complaint form, constructive dismissal.