Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Wholesaler

Representatives

Jason Meagher B.L instructed by Morrissey Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033304-001

19/12/2019

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

CA-00033304-002

19/12/2019

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

CA-00033304-003

19/12/2019

Following a dispute over rostering the complainant went on long-term sick leave. He says he resigned his position and is not claiming that he was constructively, unfairly dismissed.

In June 2019 the complainant was told by two managers that his shift was to be covered by a co-worker but that this would not affect his bonus.

Following this he says he wrote to a manager setting out his concerns about what had happened. He requested that a third party investigate the matter and resolve the issue, but nothing was done.

He went on leave following this and returned on July 1st but was again rostered to work that would deprive him of his bonus for part of that week. He complained and was assigned to picking duties.

He also told his manager of feeling unwell and his concern about the co-worker taking over his job.

He went on sick leave on July 3rd but attended his workplace to hand in a medical certificate which he gave to his supervisor, as he could not face his manager.

Because this did not strictly comply with the terms of the sick pay scheme (in that it was not given to the specified manager) he was not paid for the duration of the two-week absence.

He submits that he then terminated his employment around October 18th, 2019.

There was correspondence from his solicitor which is relevant in August and September.

The complainant says that the letter from the solicitor in October was a clear warning to the respondent that if the complainant’s grievances were not addressed he would resign and did so.

This establishes the date of his resignation which was justified as a result of the respondent ‘s failure to address the issues he raised in July.

The respondent disputes that the complainant has ever resigned and says he remains an employee.

The grievance to which the complainant refers has only been brought to its attention in the course of these WRC proceedings.

The letter purporting to give notice of the resignation does no such thing; it merely advises of the possibility of WRC proceedings which could have related to anything.

Indeed, the complainant attended a consultation with the respondent Occupational Health service some weeks after this which conforms that he considered himself to still be an employee some time after the date he now identifies as the date of his resignation.

Therefore, as there has been no dismissal or resignation and the complainant continues to be an employee there is no jurisdiction to hear the case under the Unfair Dismissals Act.

No claim arises either under the Payment of Wages Act. The complainant failed to meet the requirements of the sick pay scheme for the period of absence in July.

The facts are as set out above. It is a complaint of constructive unfair dismissal.

The Unfair Dismissals Act 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 just 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.

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 failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above).

Turning to the current case, the first difficulty relates to whether the employment has terminated or not.

The respondent submits that, at least up to the time of the hearing, it was operating on the basis that the complainant was still in its employment. It denies any knowledge of an instrument of termination e.g. a letter of resignation, for example.

The complainant bases its case on a letter from his solicitor in October threatening referral to the WRC.

However, that letter, (read to the hearing) did not refer specifically (or indeed at all) to a resignation; either actual or proposed. It went no further than to refer in a non-specific way to the possibility of WRC proceedings.

It is not possible to infer from this a threat of resignation, (specifically that the WRC proceedings threatened would relate to a constructive dismissal) to say nothing of rendering this an act of resignation.

And indeed, even if it had contained a more precise intention to resign it is doubtful whether a constructive dismissal complaint could be built on such a shaky foundation, given the other facts in the case.

These relate to the status of earlier alleged grievances in June, which, while there is controversy about whether such grievances were ever properly lodged, they appeared in any event to have been left in abeyance by the complainant. They were in any event relatively minor.

The fact remains that no such construction can be put on that letter from the complainant’s solicitor, and fatally for the complainant’s case he attended an Occupational Health consultation some ten days after the date of the purported resignation and termination of the employment.

Accordingly, I can find no act of termination of the employment.

In any event, none of the earlier facts of the case come remotely close to meeting the test set out above in relation to use of the respondent’s internal grievance mechanisms.

This complaint therefore is entirely without merit and it fails.

As will be seen above the complainant engaged a solicitor at an early stage in the internal, workplace grievance process.

It is clear from a reading of the respondent’s grievance policy that the onus falls on an affected employee to process a grievance personally, or to have it processed on his behalf by the recognised trade union. This was made clear by the respondent in its dealing with the matter.

Similar provisions exist in the Code of Practice on Grievance and Disciplinary procedures (SI 146/2000).

It is obviously not just desirable from the point of view of good workplace industrial relations that matters be processed through workplace procedures, but it is a pre-condition to the success of any complaint of constructive unfair dismissal, as set out above by Dr Redmond.

Employees would, in general be better served by following the grievance procedures which essentially form part of their contractual terms of employment. The respondent is also a unionised workplace.

Their right to legal or other professional representation may arise at a later stage.

However, in the initial stages of workplace grievance processing solicitors seeking a right of audience do so despite there being no provision for this in either the employee’s grievance procedures or the Code of Practice provisions. It may add delay and unnecessary controversy to the proper processing of a person’s complaint (to say nothing of unnecessary cost to the complainant).

It would be a more helpful contribution to the proper processing of such matters that employees seeking legal advice at that stage should be so advised.

In the vast majority of cases no legal issues arise in the early stages of the processing of grievances requiring professional legal representation. Where they do that is a different matter.

In this case, the complainant’s solicitor wrote to the respondent on August 27th, 2019 raising the issue regarding the complainant’s removal from specific duties and requesting a copy of the grievance procedure.

In response the respondent replied (direct to the complainant) that it was not aware of any grievance.

Why, if there was any doubt about it, the complainant was not simply advised by his solicitor to submit a grievance at that stage is a mystery. It is not a complicated procedure. However, there is a limited degree of formality required; simply chatting to a supervisor will not suffice.

Any controversy about whether a grievance was or was not submitted surfacing much later in the course of WRC proceedings in an unfair dismissal case would have been easily avoided by the complainant being advised to do so in August 2019.

While the complainant’s solicitor may have been advised that a grievance had been submitted, once he was put on notice that the respondent had not been served to its knowledge the options were clear. There is not much point in relying on a grievance having been served when it was clear in August 2019 that the respondent’s position was that it had not.

Even the purported act of resignation was a letter from the complainant’s solicitor (although my finding above on this is clear that it was not a resignation letter).

It ought to be obvious that a letter or other act of resignation should be from the person resigning and not a third party, even a solicitor (or a trade union, for that matter) other than in the most exceptional circumstances, which should be fully explained, and where necessary certified in the correspondence.

In respect of the claim for payment under the respondent’s sick pay scheme, while the respondent has applied a very strict interpretation of the terms of its scheme it is entitled to do so and therefore no claim arises under the Payment of Wages Act either.

For the reasons set out above I find that none of the complaints CA-00033304-001, 002, or 003 are well-founded.

Constructive unfair dismissal, grievance handling.