Complainant

Respondent

Anonymised Parties

Driver

Municipal Services

Representatives

Ronan O'Brien Ronan O'Brien and Company, Solicitors

Andrew Freeman Sean Costello Solicitors

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-00035766-001

19/04/2020

Both parties confirmed start and end date of employment and the company name was correct and the Complainant’s hourly rate was €14 per hour at 40 hours week.   The Complainant was employed from 14 May 2011 to 21 October 2019.  The Complainant stated he had to leave his job due to conduct of the Respondent or others at work.  He had at least 12 months service.  The Complainant alleged he was unfairly dismissed via constructive dismissal.

A complaint was received by the Director General of the Workplace Relations Commission from the Complainant on 19 April 2020 alleging that he was constructively dismissed. The said complaint was referred to me for investigation.  A hearing for the purpose was held on 20 October 2020.  There was no appearance by or on behalf of the Complainant at the hearing.  I reviewed the case file to check that the Complainant was informed of the date, time and place at which the hearing to investigate the complaint would be held. I subsequently contacted the WRC and contacted the employee’s representative via email to confirm they had received notification of the hearing. At that time, it was realised that the WRC had made an administrative error, so the parties were both notified of this and the hearing was rescheduled and the parties attended a remote hearing as a result.

The Complainant was employed since 2011 as a Road Sweeper and HGV driver.  He received a contract and he understood he would have a works vehicle to travel home at that time.

The Complainant’s contract covered counties north of Dublin and wider geography. He was employed until November 2019 and would have carried out extra night shifts on occasion.

The Complainant confirmed he always had the use of the work vehicle until a particular time in 2019.

The Complainant stated that without notification a Manager contacted him to say he would have to start bringing the vehicle (the road sweeper) back to the depot in Dublin at the end of his shift. This was unilateral change due to the financial nature and due to the amount of diesel used.  The Complainant took issue with this. The Respondent made a number of proposals to the Complainant as follows:

1.       The Respondent would give the Complainant €50 travel allowance weekly for diesel.

2.       The Respondent would purchase a van by a company of their choosing and the repayment for same would be deducted from the Complainants wages and he would have to cover all related expenses including insurance etc.

The Complainant stated that these proposals were not suitable options.

The Respondent thereafter suggested the Complainant use public transport to get to the Dublin depot and return home to Cavan after using the vehicle each day. The Complainant stated he would have to get a bus at 4.50am to get to work for 6.30am which wasn’t feasible.  This was a 2-hour trip for the Complainant each morning and additional cost of travel also and same each evening. The Complainant confirmed that his last job was in Athlone so he would be travelling back to Dublin then travelling home.

The Complainant stated he explained this to the Respondent and raised it with his Manager and the Director.  The Complainant stated there was another issue in that he felt he was unfairly being singled out and this was raised on his behalf by his Solicitor to the Respondent as he was the only driver required to return his vehicle.

The Complainant stated the options which were given to him were not realistic and possible for him due to cost and time.  He therefore, had no option but to resign as he was singled out.

The Complainant confirmed he left his employment on 21 October 2019 and was out of work for a few weeks and secured employment on 1 November 2019 at €120 per shift gross, it was not an hourly rate and he did 4/5 shifts per week.  The Complainant confirmed he earned more in his new job and it was 1 hour away from home and he drove there as he had purchased a car since.

The Complainant stated he had not been paid his holidays and had not received his P45.  The Complainant stated that when the Respondent said it was a take it or leave it option that if he didn’t take one of the proposals his job was gone.

Cross Examination of Complainant

The Complainant confirmed he received a contract.  He confirmed he always lived in the same geographic area. The Complainant stated the vehicle was a road sweeper and he was usually based around the same area.  The Complainant stated he did not know the cost per gallon and the cost of running the vehicle. 

In relation to the proposals presented to him by the company he added:

1.       The Complainant stated he did not have a second car so the cost to him of €50 was not practical.

2.       The Complainant stated he could not afford to pay off the vehicle each week via his wages.

3.       The Respondent stated they offered the Complainant €50 towards the diesel and would sell the vehicle to him at a cost but the Complainant stated he did not remember this.

4.       The Respondent stated they finally offered the Complainant €50 towards public transport costs or 2/3 of cost of public transport. The Complainant stated he did not remember this.

The Complainant stated the Respondent did not offer the last two options.  The Complainant stated the Respondent also said these are take it or leave it options.

The Respondent stated the Complainant was not available after that.  The Complainant stated the only reason he wasn’t available was he didn’t have a vehicle. 

The Respondent stated they were going to keep work close to him as much as possible.  The Complainant stated this was not the case.

The Respondent gave evidence and said they didn’t have enough work in the area to have the vehicle located there.  He stated it was a costly vehicle to use as a commuter vehicle due to cost. The Respondent stated the cost of diesel was prohibitive as it was hugely expensive and unviable as this vehicle was a road sweeper not a company vehicle.

The Respondent stated the majority of work was in the greater Dublin area not the location close to the Complainants home. The Respondent stated they tried to facilitate the Complainant as best they could but the cost was prohibitive. The Respondent confirmed that the Complainant was a good worker and they had no issue with his work.

The Respondent stated it was not a redundancy situation even though the Complainant presented that option as there was sufficient work.

Cross Examination of Respondent by Complainant’s Representative

The Respondent confirmed the Complainant was paid appropriately for any extra hours he worked.

The Respondent reiterated that he tried to facilitate the Complainant location wise as best he could.

The Respondent stated there was no issue with the Complainant travelling home after he finished work from near his home location.  The Complainant’s representative stated this was not the case and that the Complainant had not been offered that option. The representative also stated the Respondent also suggested other options that were not suggested.

The Respondent stated that there were other members of staff that had to be restructured. The Respondent’s representative contested this. 

The Complainant representative stated that the location of the bulk of the work was in dispute.

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

“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.”

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“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 other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

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

 According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

“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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

 Furthermore, in the case of use/non-use of Employment Procedures the often-quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R.

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

 In a constructive dismissal case, the breach of the employment contract must be of a most serious nature. Normally this involves the non-payment of wages or fundamental changes to the employment relationship. In this case and having reviewed the evidence this is a key consideration in this case. All things considered I do see a fundamental breach of the Employment Contract such as to justify a constructive dismissal resignation as the employee was told take it or leave it regarding the options presented when his vehicle was being taken from him and these options were not clearly presented to the employee and fair and reasonable consultation to remedy the mater did not occur; I also note the evidence regarding what was presented as options differs.   The Company vehicle was an intrinsic part of the Complainant’s accepted and essential terms and conditions.  The Complainant’s terms and conditions were unilaterally changed to take his vehicle from him after over 8 years of employment.  It is also important to note that this is a road sweeper and not a standard company vehicle so I appreciate the issues associated with cost are likely probable therefore I accept the company did this for business reasons but did not clearly outline the options to the employee to show they were being reasonable to try to remedy this issue.  The Respondent presented some options to the Complainant to replace the vehicle, however, they were not acceptable options to the Complainant due to cost and time issues involved for him. Also, the options were not clear.  The Complainant was told it was a take it or leave it by the Respondent and I do prefer this evidence based on the evidence presented at the hearing.  The Complainant resigned accordingly.  The Complainant had invoked the internal procedures via his solicitor and as a result the company were on notice that this matter was a key issue for the employee and his employment with them.  There is a differing of evidence regarding the options that were offered by the company which is unfortunate and should have been clearly clarified in writing to avoid this ambiguity.  Notwithstanding this no agreement was reached and the sole reason the employee resigned was as a result of the withdrawal of the vehicle without alternative options being agreed to replace/compensate for this.  It is reasonable to withdraw the vehicle in line with business requirements but how it was done was procedurally not fair and reasonable and this is the crux of this case.   Taking the reasonableness and the legal tests involved in a Constructive Dismissal case I did find that the evidence was supportive of the Complainant’s case. I also find that there was a strong enough case to support the withdrawal of resignation argument. Accordingly, I have to find the complaint is well founded.  I find the Complainant was unfairly dismissed as a result of constructive dismissal.

I find the Complainant’s dismissal was unfair and meets the bar of constructive dismissal as a unilateral change was presented to the Complainant and if he didn’t take it his job was gone as it was a take it or leave it option that was presented to him.  Consultation did not occur in a reasonable and constructive way and in turn the employee had no option but to resign his position.  The Complainant secured alternative work shortly after leaving his employment and was been paid an increased amount of wages in his new role. Therefore, I award the Complainant his actual loss that being 2 weeks wages at €14 per hour x 40 hours totalling €1,120 compensation for the unfair dismissal.