Complainant

Respondent

Parties

Wayne  Harrison

O'Neill & Brennan

Representatives

SIPTU

Mary Seery Kearney B.L.

Act

Complaint Reference No.

Date of Receipt

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

CA-00043613-001

16/04/2021

The complainant commenced employment with the respondent in September 2015 (the respondent says 2016). He resigned in April 2021 and complains that he was constructively dismissed.

The complainant began an assignment for O’Neill and Brennan at a client construction site on March 15th, 2020.

While working there the foreman asked him to load a scaffold which he felt was unsafe. The complainant contacted the foreman and expressed his concerns, but he was told to continue doing the job of loading the scaffold with materials despite his concern.

The complainant then contacted the respondent and relayed those concerns to the line manager and photographed the scaffolding as evidence of the hazard. He sent these pictures to the line manager. Shortly after the foreman and another man escorted him off the site.

The complainant then contacted the respondent again and was told to go home. He contacted his union with the photo evidence.

The complainant felt personally victimised as he had been advised that in the event of feeling anything on the site was unsafe to let the foreman know. This event led to him being left at home for twenty weeks.

While the complainant was at home, he contacted his employer and SIPTU.

On August 15th, 2020, he was sent to a site in Dublin port. While working there the complainant was appointed ‘Covid Officer’ and safety officer.

After two weeks the complainant raised an issue about his travel time and was told this would be resolved and three weeks later he was paid his travel time but noticed discrepancies on his pay slips.

Later that week he was a Covid ‘close contact’, and the foreman advised him to go home and self-isolate for two weeks. The complainant contacted the respondent and told him what had occurred, and he said the complainant should not have left the site.

The complainant told the respondent that the foreman had told him to go home, and he had to abide by what he said. After this the complainant was left at home for a further three months.

He constantly contacted the office and the union. Eventually O’Neill and Brennan agreed to have a meeting with him.

The night before the meeting the complainant was contacted to attend a job the same day as the meeting.    The complainant was told that he would be unable to get future work if he did not go.

The complainant says that the respondent has failed to address his issues, that he has been denied work there has been a breach of trust by the respondent sufficient to justify him terminating the contract by means of a constructive dismissal.

The respondent is an Employment Agency within the meaning of the Employment Agency Act, 1971 and the complainant was a Temporary Agency Worker who was first contracted to work on assignment with a client of the respondent on September 26th, 2016.

Hewasissued withacontractofemployment,signed,anddatedby him on that day.The contract contains a grievance procedure.

On or aboutMarch 15th, 2020, the complainant commenced an assignment on the site of a client hirer of the respondent.

The complainant raisedahealthandsafety issue andsentaphotographtotherespondent’smanager who contacted the site and was advised that there wasconfrontation between the complainant and the foreman and that the complainant hadbeen sent home.

The client hirer refused to take the complainant back onto the site.

While the issue raised by the complainant was valid and it was rectified, the hirer took the view that his confrontation with the site manager rendered his position with it untenable. The hirer is ultimately in control of who they chose to work on any site and their wishes had to be respected.

Thecomplainantwasofferedanalternativeassignmentofworkbyone of the respondent’smanagersonanothersite.

He sent a message to the manager on March 16th, to say no-one was at the site to which he had been assigned and that he was going home. In fact, the site did open, but the complainant did not report into work with the client hirer either that day or subsequently.

The Covid-19 pandemic was then breaking out and the country was in complete lockdown by March 24th. Indeed, a number of construction sites­­­­­­ had already closed by that date.

The construction industry was reopening on a phased basis over the Summer of 2020 and the complainant was given an assignment to a site and commenced work on August 4th, 2020.

The complainant made a complaint about payment of travel time. He hadbeen in receipt of this at a previous employer but was advised thatthe company no longer paid agency staff travel time, but he wasofferedandpaidasmall, once offsumascompensation.

The complainant responded that it was not worth his while working without the travel time payment but continued to work at the assigned location.

On September 25th, the complainant claims he was deemed to be a ‘closecontact’ and was unable to attend work. He contacted a director of the respondentandwasinstructedbyhimto remain on site until he clarified the matter with the client.

However, contrary to this instruction the complainant left the site. The complainant made no contact with the respondent until late November.

Shortly after that, the complainant was offered work and refused it, he was then offered another assignment to commence on December 13th. The complainant did not attend work on December 15th, claiming that he had a union meeting, and remained absent for the entire day.  No further contact was made.

Thecomplainant’sunion officialsoughtameetingwiththerespondent, and one was arranged in early January 2021.During this meetingthecomplainant claimed that had been sacked from a site the previous year.

This was denied as, while the client had refused to have him return, the respondent agency offered an alternative assignment, for which he did not turn up. Shortly thereafter all sites were closed because of Covid.

He claimed that he was sent off a second site in September.

This is denied. The complainant was deemed a close contact and a manager had asked him to wait, but the complainant took it upon himself to leave the site. The complainant had not contacted the respondent until November.

The complainant states that he was sent home in September due to being a close contact and that he was left at home for three months. Yet he also states that he was told to go home for two weeks. This is another inconsistency in the complainant’s claim.

AtameetingwiththecomplainantonFebruary 4th, 2021,itwasputto him that, rather than being sent home from the site, he was actually instructed not toleave. The complainant did not deny that this was the case.

The respondent says that the client in question said he received a call from the complainant in September and did not hear from him again until November.

The complainant alleges constructive dismissal, so the burden of proof remains with him until the case is properly set out.  Neither the case described on the complaint form, nor his subsequent statement meets even a generously interpreted bar of sufficient detail that would permit the respondent to reply. There are no details of the complaint, it is vague as to content and allegation.

His claim sets out that he “had to leave my job due to the conduct of my employer or others at work (constructive dismissal)”.

The complainant is obliged to take account of the global pandemic and distinguish his allegations from the obligations of the public health restrictions in a very clear statement.

Further, the complainant fails to declare that he was immediately offered an alternative assignment the day after his removal from the previous site. It is a crucial omission as the complainant is seeking to infer that there was a direct retaliation on the part of the respondent for his complaint on site, when the opposite was the case.

Thecomplainant alsofailstoreferto the fact thatheisanagencyworker. He had beenemployed by the agency since 2016 and was not a new employee orunaware ofthedifferencebetweenadirectemployee,asub-contractor,and an agency worker.

This omission is also fataltohisclaimbecauseitgivesrisetotheinferencethata different set of circumstances apply that give him greater rights than he isentitled to and ignore that the provision of assignments is not within the gift of theagency and that work is not guaranteed on a constant basis.

The respondent offered him alternative employment within 2 weeks of all notification of his availability to work thereby discharging their obligations of consistency in working assignments such as to defeat any claim of unfair dismissals or constructive dismissal.

The respondent denies any breach of the Unfair Dismissals Act.

It is the complainant’s claim that,

 “I was forced to leave my job because of my employers conduct and the way they treated me. I believe my resignation was justified because of there [sic] action and inaction. The situation became so intolerable when I highlight health and safety issues/concerns – I was penalised and I was not given any working hours, this occurred on a regular basis. Due to economic circumstances I had to resign and seek employment elsewhere.”

The complainant submitted his claim to the WRC on April 16th, 2021. If he is saying that he was penalised on foot of a complaint he made on March 15th, 2020, then his complaint in respect of this event is now out of time.

Even if the complainant were to be accepted as making the claim that his alleged victimisation was to include the 20 weeks when he did not receive an assignment, this then brings his date of event to the August 2nd, 2020, which is also out of time.

The complainant has put forward an email which purports to be the raising of a grievance, on a date prior to the event which he alleges was the commencement of his alleged mistreatment.

The complainant does not advance any evidence of the making of a grievance after the event on the site on March 15th, 2020.

It is well established law that just as it is the obligation of an employer to followdisciplinaryproceduresbeforedismissinganemployee,an employee must do likewise and show evidence of a grievance being submitted before any decision to resign and claim constructive dismissal.

The complainanthas offered no evidence of following theproceduresrequired bythegrievancepolicy or of exhausting all avenues open to him prior to the making of theclaim.

While a meeting was held in January, it was not an official grievancemeeting andthecomplainantdidnotawaitanoutcome, nor did he appeal.

Instead, he entered discussions and sought compensation for the twenty weeks of the Covid-19 related lockdown, alleging that he was prevented from working by an alleged victimisation, and not the pandemic. The complainant made an impossible claim and then walked out of his job when it could not be satisfied.

This does not constitute a constructive dismissal. The complainant himself frustrated his ability to work by finding fault with every assignment and walking from his assignment contrary to the instructions of the Company.

The narrative is set out in the submissions and the timeline of events is relatively clear.

The complainant resigned from his job on April 15th, 2021, following a period of engagement with the respondent with a view to resolving matters between them. This appears to have begun in early January on the initiative of his union representative and there were further meetings on February 3rd and 4th.

The complainant was accompanied by his trade union official at these meetings.

This sequence of meetings followed an even earlier approach the previous September, but nothing further was heard until the complainant’s union made a second approach about a ‘settlement’, by which it meant a severance arrangement.

The parties could not reach agreement and some weeks after the discussions concluded the complainant resigned.

He now claims constructive dismissal.

The incidents allegedly giving rise to the complaint are set out above. One was in March 2020, and another in August (which was resolved), and then another in September. Indeed, it is hard to see what residual issues arise from these incidents, and critically, no formal complaint was made about them at the time.

In any event the first of these was over a year the second almost eight months before the complainant resigned.

The complainant says that he was left at home for twenty weeks after the March incident, curiously overlooking the lockdown associated with the Covid-19 pandemic.

In September he left a site claiming to have been a ‘close contact’ despite being instructed not to. The respondent says it heard nothing further from him until November.

He was offered work and, according to the respondent refused it.

He was then offered another assignment due to start on December 13th. He did not attend work on December 15th, claiming that he had a union meeting, and remained absent for the entire day.  No further contact was made.

When thecomplainant’strade unionofficialsoughtameetingwiththerespondent, as noted above, one was arranged for January 2021 which brings us to the process referred to above.

In my view there is no basis to connect to, much less justify any decision by the complainant to resign, those 2020 incidents for several reasons.

Reference has already been made to his failure to raise any of them within a reasonable time of their occurrence. Even had he done so, some of his own conduct in relation to the various matters would have been a factor in any outcome which might have resulted.

But this can never be known as he did not act on the grievances.

It appears that the approach made on his behalf that led to the discussions in early 2021 was based on his desire to leave the respondent’s employment with some sort of a severance package.

These discussions terminated on February 4th without agreement. It was the best part of another six weeks before the complainant resigned.

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 a 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 open an assessment of whether the employer’s conduct has been so intolerable that it justified 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 failure to use company procedures to address a grievance is critical (and see again Dr Redmond’s remarks above).

The complainant relied heavily on an alleged breach of the doctrine of mutual trust and confidence.

This is a real and fundamental pillar of the employment relationship. However, it is becoming almost a lazy fashion to rely on it to describe any deterioration in relations between parties, as if the simple incantation of the phrase will cause any opposing argument to wither away.

In this context, some sense of its proper meaning will be found in the dicta of Finnegan J. above that ‘The conduct of the employer complained of must be unreasonable and without proper cause’ and the consequent criteria for determining its effect ‘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’.

Therefore, simply pleading a ‘breach of trust’ will only start such a conversation rather than ending it.

In my view the complainant falls well short of meeting the burden of proof in this case measured against every yardstick.

The matters on which he grounds his case were historic and he failed to act on them in a timely way. There was no incident on which a grievance could be made out after September 2020 and it is doubtful on the facts submitted whether any of them would have successfully navigated the grievance process.

In any event, there is no evidence that he ever submitted a grievance.

The respondent reacted promptly and positively to the approach from the complainant’s union when it came and entered in good faith into a process to seek to resolve the issues.

Then, six weeks after the discussions ended he resigned not, it as he alleges on foot of the 2020 grievances, historic and moot as they were but as a result of the respondent not meeting his expectations for a settlement.

There was no justifiable reason for him to break his contract of employment and the complaint does not succeed.

For the reasons set out above Complaint CA-00043613-001 is not upheld and the complaint fails.

Constructive unfair dismissal