ADJ-00029481

Complainant

Respondent

Parties

Amjad  Khan

ACCHL Limited AIM Cash & Carry

Complainant

Respondent

Anonymised Parties

Sales assistant

Household products retailer

Representatives

Stevroy Steer Law Solicitors

Sarah Treacy In House Legal. MS Rachel Duffy, B.L

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039827-001

14/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039827-002

14/09/2020

The complainant worked as a sales assistant with the respondent initially from 2003- 2010. His second period of employment commenced on April 2016 and extended up until April 2020.

 He has submitted a complaint of a breach of the Terms of Employment (Information) Act, 1994, and a complaint of constructive dismissal.

His fortnightly gross wage was €1081. He worked 40 hours a week.

He submitted his complaint to the WRC on the 14 September 2020. 

CA-00039827-001. Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The complainant’s representative stated that the complainant was not advised of the respondent’s unpaid sick leave policy until he was refused sick pay and, as a consequence, belatedly applied for disability benefit. This constituted a detriment.

 Evidence of complainant.

Complainant states that he was not given any take-away, hard copy of a contract nor was he given terms and conditions. He was asked to sign a contract. The sick leave policy was never explained to him.

Cross examination of the complainant.

The complainant confirmed that he was provided with a copy which he took home with him, but its terms were not explained to him and because of the language barrier this presented difficulties for him. The English language test which he was required to pass to get a security pass was a multiple-choice test and is not indicative of English language competency.

He confirmed that he had not been paid sick leave before on the one or two days when he had been sick. 

CA-00039827-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

Dismissal is in dispute

The complainant’s representative stated that the complainant was constructively dismissed when he was unable to work due to an injury sustained at work. This injury stemmed from being assigned to dispose of rat waste on the respondent’s premises on 28 March 2020 and on 1 and 2 April 2020 without any protective equipment. His arm and hand became red and swollen. He went to St James Hospital on the 2 April 2020 for treatment for his arm. This assignment was not part of his job description. He was diagnosed with work place stress on 2 April 2020. His subsequent medical certificates reveal stress- related illness and an injury to his hand. He was not paid for the duration of his medically certified sick leave. He submitted grievances to his employer concerning this matter.

In addition, he resigned because he had submitted complaints in April 2020 about how two colleagues engaged with him in a bullying manner and the respondent failed to address his concerns.

The complaint was on medically certified leave up until 5 March 2021.

The complainant acted reasonably in resigning from his position in circumstances where he and his former legal representative’s efforts to resolve his grievances prior to submitting his complaint to the WRC came to nought.

Date of dismissal.

The complainant’s complaint form contained no date of dismissal.

When asked by the adjudicator to identify the date of dismissal, the complainant stated that he was unclear, but that he left the employment on the 2 April 2020 because he was ill. His representative advised that  the complainant’s previous solicitor lodged the complaint for him on the 8 August 2020. His representative ultimately stated that he resigned in March 2021. He was unable to resign up until that date because he was sick.

Evidence of Complainant.

 The complainant sent messages to his manager in April and in June 2020 concerning his treatment by colleagues. He got no response to his request for help. He then he went to a solicitor. His manager asked him to bring a fitness to resume work certificate in June 2020.

The complainant was on medically certified leave up until 5 March 2021. He was certified fit to resume work on 6 March 2021 He was unable to return to work after March 2021 because of illness and the Personal Injuries claims which he was pursuing against the employer.

Cross examination of the complainant.

The complainant confirmed that he did not formally resign. He decided not to return to work in March 2021 when declared fit to resume work.

The complainant confirmed that he telephoned the HR Business Partner on the 7 April to inform her of his treatment at the hands of 2 colleagues. She told him of the grievance procedure, but he did not think that was the right policy to address his concerns. He received a letter from the HR Manager advising him of the grievance procedure on the 10 April 2020. He did not activate it because they knew what his concerns were.

 He submitted medical certificates from 2 April to 22 July 2020 to the respondent. After July 2020 he sent his medical certificates to his solicitor who told him that he would send them on to the company.

 He submitted his complaint to the WRC 14 September 2020.

 The High Court proceedings were initiated in November 2020 and entailed a personal injuries claim in Relation to Bullying and Stress Related Illness pursuant to Section 8(1) of Safety, Health and Welfare at Work Act 2005. The High Court proceedings led him to resign. It was not a sudden decision.

Mitigation.

The complainant stated that he has not acquired another job. He applied for about eight positions since March 2021.

Legal authorities.

Concerning the respondent’s case that the complainant had not used the grievance e procedure, the complainant’s representative relies on An accountant v An Accountancy Firm, ADJ 00017674, which upheld a complaint of constructive dismissal in circumstances where the complainant had not availed of the company grievance procedure. The complainant also relies on the Labour Court decision of Ranchin V Allianz Worldwide Care S.A, UDD1626 where the labour Court held that the conduct of both parties must be examined in a complaint of constructive dismissal. In the instant case the complainant’s representative states that the respondent failed to tackle his legitimate complaints and the complainant was therefore justified in resigning.

The complainant asks the adjudicator to uphold his complaint.

CA-00039827-001. Complaint under the Terms of Employment (Information) Act, 1994

The complainant was employed on a fixed- term contract on 8 April 2016 which set out his conditions of employment.  It was renewed each year thereafter on the same terms.

The respondent provided the complainant with a written statement of his terms of employment in accordance with section 3 of the Act of 1994. The respondent submitted a copy of the statement complete with the complainant’s signature setting out his terms of employment.

Evidence of the HR Director.

The witness stated that she sat down with the complainant in 2016 and went through the terms of his contract with him. Both the witness and the complainant retained a copy of the contract.

The HR director stated that she had enjoyed a good working relationship with the complainant

CA-00039827-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The respondent submits that the complainant cannot succeed in a complaint of constructive dismissal as by his own evidence he never formally resigned. At today’s hearing, he gave March 2021 as the date of resignation, but his complaint was submitted   on the 14 September August 2020, 5 months prior to his resignation.

Aside from these crucial points, the complainant walked off the job on 2 April 2020 without informing his line manager and never returned to work. He did convey his concerns to the HR business partner and was provided with a copy of the grievance procedure as a means of addressing his concerns. He never availed of that option.

Evidence of the HR Director.

The witness stated that she had enjoyed a good working relationship with the complainant. On the 2 April 2020 he left his workplace without any explanation. She had no idea why he had left.

Evidence of the HR Business Partner.

The complainant texted her on the 9 April, informing her that he was sick. The complainant contacted her on the 7 April to complain about bullying behaviour by two colleagues. He never raised any grievance with her about colleagues’ behaviour towards him.

The respondent submits that for an employee to succeed in a case of constructive dismissal there must be a resignation preceding the lodgement of a complaint – a factor missing in the instant case.

In addition, the employee must have used the grievance procedure. In this regard the respondent relies on M Reid v Oracle EMEA Ltd, UD 1350/2014 and John Travers v MBNA Ireland Ltd., UD 720/2006.

The respondent also relies on the requirement for the complainant to demonstrate the unreasonable conduct of the employer which cannot be argued in the instant case as the respondent offered the complainant opportunities to engage with them which the complainant chose to disregard.

The respondent asks that the complaint should be dismissed.

CA-00039827-001. Complaint under the Terms of Employment (Information) Act, 1994

The evidence tendered reveals that the complainant was given a signed copy of his terms and conditions of employment on April 2016 in compliance with section 3 of the Act of 1994.  I find that the terms were explained to him. The terms did disclose that payment was not provided for absence on sick leave.

I find this complaint to be misconceived.

I do not find this complaint to well founded.

CA-00039827-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I am obliged to establish if section 1 (b) of the Act of 1977 operates to validate this complaint of constructive dismissal.  Section 1 (b) of the Act states

 “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 of employment without giving prior notice of the termination to the employer.”

Did termination occur?

It is accepted that the complainant never formally resigned from his employment. He was unclear on the date of his alleged constructive dismissal but did ultimately identify 6 March 2021 as the correct date.

Preliminary Point: Submission of a complaint prior to the date of dismissal.

Relevant Law.

 Section 8(2) of the Act of 1977, as amended, specifies that

“A claim for redress under this Act shall be initiated by giving a notice in writing ( containing such particulars if any), as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section to a rights commissioner or the tribunal, as the case may be, within six months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period.”

This complaint of constructive dismissal was received in the WRC on the 14 September 2020, almost six months prior to the date of the alleged constructive dismissal. The dismissal did not exist at the time the complaint was lodged. The submission of a complaint prior to the “date of dismissal” was considered by the High Court in Brady v Employment Appeals Tribunal (2014) IEHC 302. That claimant, notified of his impending dismissal due to redundancy, submitted his complaint to the EAT before his two weeks’ notice period had expired. The employer argued that the dismissal did not take effect on December 16, 2011 as the two-week redundancy period had yet to expire, and that the claim had been lodged outside of the six-month time limit. This argument, accepted in the EAT, was not accepted on appeal to the High Court and the claimant succeeded in his complaint. But that is entirely different from the instant case where neither party were on notice of resignation or dismissal and the complaint was lodged almost six months outside of the six-month time limit, during a period when he was on disability benefit. It is clear that the complainant was very aggrieved about what he saw as the indifference of the respondent to his strongly held views, but his complaints have to be adjudicated upon within the confines of the Unfair Dismissals Act, 1977.

Accordingly, I find that the lodgement of this complaint with the WRC was premature and not submitted within the time frame necessary for compliance with section 8(2) if the Act.

I find that I do not have jurisdiction to hear this complaint.

CA-00039827-001. Complaint under the Terms of Employment (Information) Act, 1994

I do not find this complaint to be well founded.

CA-00039827-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I find that I do not have jurisdiction to hear this complaint.

Compliance with section 3 of the Terms of Employment (Information) Act, 1994. Premature lodgement of a complaint of unfair dismissal; lack of jurisdiction.