ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00028438

Parties:

Complaint:

Date of Adjudication Hearing:  29/03/2021

Workplace Relations Commission Adjudication Officer:  Eugene Hanly

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

Preliminary Point

Respondent’s Position

The Respondent submits that there was no dismissal, constructive or otherwise, and that the Claimant did not in fact even tender resignation in advance of initiating the within proceedings. To the extent that the Claimant alleges that his complaint form constitutes resignation, which itself is illogical from a chronological perspective, it is submitted that the Claimant voluntarily resigned from his employment and could not mount a successful claim for constructive dismissal.

The Claimant held various roles within the Respondent from 2010 to 2016. In September 2016 the Claimant took up the role of Customer Manager and this was the role that the Claimant held up until the date of his resignation.

The Claimant’s role required the management of the relationship with two of the Respondent’s largest customers. This includes the setting of a strategic direction for growth in the accounts, rigorous management of a significant trade spend budget and delivering on agreed objectives in a collaborative manner with customers.

Preliminary point

Section 1 of the Unfair Dismissals Acts defines “dismissal” (in the context of a constructive dismissal) as: the termination by the employee of his contract of employmentwith 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...

The Claimant did not take any steps to terminate his employment in advance of filing his complaint of alleged constructive dismissal with the Workplace Relations Commission. The Claimant submitted a medical certificate to the Respondent on 2 June 2020, certifying his absence for the entire period of June 2020. The Respondent did not hear anything else from the Claimant until receipt of the Claimant’s complaint form dated 4 June 2020, received on 16 June 2020. The Claimant took no action whatsoever to terminate his contract of employment and continued to receive employment-related benefits following the submission of his complaint form.

The Respondent’s solicitor wrote to the Claimant’s solicitor on receipt of the Complaint Form on 22 June 2020 in order to clarify matters. The Respondent’s solicitor stated: We note, with surprise, that your client is pursuing a complaint of constructive dismissal against our client. Our client has not received any notice of your client's resignation from his employment. Your client remains an employee of our client, and our client has continued to treat your client as such. Your client

continues to avail of the use of our client’s vehicle, mobile phone and laptop, our client is paying health insurance contributions for your client’s benefit and your client is continuing to submit sick certificates to our client. All of the foregoing are as a direct result of your client’s ongoing employment with our client. Please confirm whether your client wishes to resign from our client’s

employment. As you will appreciate, should your client confirm his resignation, our client will need to put in place the appropriate steps for the return of the aforementioned company property, and the cessation of company benefits.

By letter dated 23 June 2020, the Claimant’s solicitor replied and stated: Your client received notice of our client’s resignation from his employment; our letter of 4th June 2020 and the Complaint to the WRC are self-explanatory. No other interpretation can be put on that correspondence, of some weeks ago. No “Sick Certificates” have been submitted since 4th June 2020.

Section 1 of the Unfair Dismissals Acts requires the Claimant to terminate his employment before bringing an unfair dismissal complaint. Redmond on Dismissal Law states “Before the enforcing authorities will examine the fairness or unfairness of dismissal, they must be satisfied that an employee has been ‘dismissed’ in accordance to Redmond on Dismissal Law, 3rd edition, Desmond Ryan, paragraph 22.02 with the Unfair Dismissals Act 1977”. In this instance, the Respondent submits that there was no dismissal, and that the contract of employment had not in fact terminated at all.

Pursuant to section 1 of the Unfair Dismissals Acts, in cases of constructive dismissal one is not necessarily required to give “prior notice” of the termination of employment. Similarly, an employer is not required to give prior notice in circumstances of gross misconduct. However, there is still a requirement to take action to terminate the contract of employment in order for employment to terminate. The Claimant remained an employee of the Respondent at the time of submission of

his complaint form, and therefore the Workplace Relations Commission does not have jurisdiction to hear the complaint. The Respondent continued to provide the Claimant with employment-related benefits after the Claimant filed his complaint.

Complainant’s Position

Section 1 of the Unfair Dismissals Acts defines “dismissal” (in the context of a constructive dismissal) as:  “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...”

 It is well established in this jurisdiction that there are two tests contained in this definition of constructive dismissal: the contract test and the reasonableness test and were set out in the case of Western Excavating (ECC) Ltd -v- Sharp where it is set out that it comprises two tests referred to as the “contract” and the “reasonableness” tests.

The contract test is “If the employer is guilty of conduct which is a significant breach going to the root of the 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 is 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 us justified in leaving”

Preliminary point - timing

The complainant raises issue with the respondent’s submissions, in particular the raising of a proposed preliminary point some 9 months following the filing of this complaint.

The Complaint in this case was lodged with the offices of the WRC on the 4th June 2020; it was also sent to the Respondents. The Respondent’s solicitors had previously indicated in correspondence that they did not have authority to accept service of any proceedings. The respondent filed their submissions with the offices of the WRC on the 4th March 2021, some 9 months following receipt of the complaint from, in which they raise a preliminary point in relation to the claim.

It is long established practice, and indeed a direction of the offices of the WRC that: “where a respondent wishes to raise a legal point(s) in any employment or equality complaint to include matters such as the correct respondent; time limits; whether the complainant is an employee; where the fact of dismissal is in dispute or any other legal issue these must be included in a statement sent to the WRC within 21 days of the date the complaint form is forwarded to the respondent.”

The complainant by letters, through his solicitors dated the 25th June 2020 and 14th July 2020 requested that the respondent file their submissions; by letter dated 22nd July 2020 it was identified the time for raising jurisdictional issues had expired; however, the respondent failed, refused, and/or neglected to file their submissions until the 4th March 2021.

The direction of the WRC continues: “In all cases, an Adjudication Officer hearing the complaint may draw such inference or inferences as he or she deems appropriate where relevant information is not presented in a timely manner.”

The complainant respectfully requests that the Adjudication Officer assigned to hear this complaint, to draw such inference or inferences as he or she deems appropriate concerning the delay in raising such a preliminary point and the delay in filing the respondent’s submission / response.

Respondent’s preliminary point - substantive

In essence the respondent’s preliminary point is that “The Claimant did not take any steps to terminate his employment in advance of filing his complaint of alleged constructive dismissal with the Workplace Relations Commission” and that “The Claimant took no action whatsoever to terminate his contract of employment”.

There is correspondence between the solicitor for the Claimant and solicitors for the respondent, in particular immediately prior to the lodging of the complaint with the WRC. The Claimant’s solicitor lodged the complaint form with the WRC on the 4th June 2020 and wrote to the respondent enclosing a copy of the complaint.

There appears to be some confusion on the part of the respondent as to the date of receipt of this correspondence, which it is submitted of itself will require an exploration of the evidence and the relevant correspondence is in a Booklet delivered with this reply. In essence, notwithstanding receipt (for some days) of the Claimant’s Solicitor’s letter enclosing the Complaint Form, by letter dated the 22nd June 2020 the Respondent’s Solicitor (who had come back “on record” following the earlier letter directing further correspondence to their Client) wrote to the Claimant’s solicitor stating that “Your client remains an employee of our client”, notwithstanding that the complaint form and the submissions contained therein (and the covering letter) are clear and unambiguous.

The Claimant’s letter of the 4th June 2020 clearly states “We enclose Complaint Form as filed with the Workplace Relations Commission. The Booklet of Correspondence is also enclosed and will be filed with the WRC in accordance with their procedures.”

By letter dated 23 June 2020, the Claimant’s solicitor replied and stated: “Your client received notice of our client’s resignation from his employment; our letter of 4th June 2020 and the Complaint to the WRC are self-explanatory. No other interpretation can be put on that correspondence, of some weeks ago. No “Sick Certificates” have been submitted since 4th June 2020.”

It is submitted that the respondent is incorrect in its interpretation of the Unfair Dismissals Acts in relation to what action must be taken by an employee.

Section 1 of the Unfair Dismissals Acts defines “dismissal” (in the context of a constructive dismissal) as:  “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...”

The Claimant relies on the decision of the WRC in A Stock Control Manager v A Logistics Company ADJ 00016579, wherein the Respondent contended that a complaint submitted to the WRC was premature because it was lodged during the complainant’s notice period and therefore the WRC did not have jurisdiction to hear the complaint.

The EAT noted the decision in Brady v EAT [2015] E.L.R. 1 wherein the High Court referred to the EAT case of Matthews v Sandisk International Limited UD331/2010 which stated as follows:

“The Tribunal holds that the filing of a notice in writing with the Tribunal prior to the date of termination of employment and therefore prior to the period of six months beginning on the date of dismissal but not withdrawn prior to the date of termination of employment constitutes the giving of notice in compliance with Section 8 of the Unfair Dismissals Acts.

The Tribunal finds that by leaving the form T1A with the secretariat to the Tribunal prior to the commencement of the statutory period the form was with the secretariat at the commencement of the statutory period and throughout that period. Therefore, the claimant had given notice within the statutory period as well as for an additional period.”

These decisions also reference Redmond on Dismissal Law, Third Edition, 22.78 page 511, Dr D Ryan refers to the High Court decision in “Brady” where the Court stated that:

“it would be absurd to find that a claimant should be denied the opportunity to bring a claim for unfair dismissal simply because the adjudicating body had notice of the claim immediately prior to the applicable six-month period”

Further the High Court also stated in “Brady” that: “giving notice to the Tribunal on one date such that it has notice on another date complies with the requirements of the Acts.

The WRC found in the Logistics Company case that: “On the basis of the above, I am satisfied that the complaint is properly before the WRC for adjudication.”

It is submitted that if the legislature had any other intention than what is provided for in Section 1 of the Unfair dismissals Acts i.e. “whether prior notice of the termination was or was not given to the employer” and “to terminate the contract of employment without giving prior notice of the termination to the employer...” then this provision of the Acts would have been worded entirely differently.

It is also submitted that any consideration of the respondent’s “preliminary point” cannot be dealt with in isolation nor without considering the evidence in this matter; and requires a detailed consideration of the entire facts and of the detailed and lengthy correspondence between the parties; in particular to establish with accuracy the factual matters that the Respondent relies upon in putting forward its suggested preliminary point – the conflict as to certain “facts” suggested by the respondent are clearly disputed in the correspondence already referred to (and copies are provided with this Submission).

Concerning the suggested preliminary point, should the respondent pursue an application in that regard and be unsuccessful, the claimant respectfully refers the Adjudicator to the additional remedies available by way of determination of this claim, to include remedies such as in DEC-E2015-055 (an equality case) in which the Adjudicating Officer made an Order "(b) I further order, as per Section 82(1)(e) of the Acts, that the respondent conduct a review of its policies and procedures in relation to its employment policies to ensure that they are in compliance with these Acts with particular reference to the disability ground. Unless this decision is overturned on appeal, a report on progress of this review must be made to the Irish Human Rights and Equality Commission within one year of the date of this decision. If this is not done, the Irish Human Rights and Equality Commission may (with the consent of the complainant) apply to the Circuit Court for enforcement of this order under Section 91(4)(b) of the Acts". Notwithstanding that the current application is brought pursuant to different legislation, a similar manner of decision may be appropriate given the nature of the respondents reply [including that the H.R. Department failed/refused to initiate any bullying investigation in circumstances where they were complicit in the matters identified in the Claimants Application; notwithstanding the claimant referring matters to the highest HR authorities in the respondent organisation].

Findings on Preliminary Point

I find that the Complainant did not submit a resignation to his employer, the Respondent.

I find that the Complainant submitted a complaint to the Workplace Relations Commission (WRC) under the Unfair Dismissals Act for constructive dismissal on 4th June 2020.

I find that the Complainant’s Solicitor copied the Respondent on 11th June 2020. with the claim form presented to the Commission.

I find that that was the first time that they became aware of the Complainant’s resignation.

I find that the Complainant had submitted a medical certificate on 2nd June 2020 for the month of June and two days later he presented his claim to the WRC. 

I find that the Complainant took no steps to terminate his employment before he submitted his claim for unfair dismissal to the WRC.

I find that the Respondent continue to provide a mobile phone, lap top and vehicle to the Complainant long after he submitted his claim to the WRC.

I note that the Respondent wrote to the Claimant’s Solicitor on 22nd June “We note, with surprise, that your client is pursuing a complaint of constructive dismissal against our client. Our client has not received any notice of your client's resignation from his employment. Your client remains an employee of our client, and our client has continued to treat your client as such. Your client continues to avail of the use of our client’s vehicle, mobile phone and laptop, our client is paying health insurance contributions for your client’s benefit and your client is continuing to submit sick certificates to our client.

I note the Complainant’s Solicitor’s reply dated 23 June 2020, it stated: Your client received notice of our client’s resignation from his employment; our letter of 4th June 2020 and the Complaint to the WRC are self-explanatory. No other interpretation can be put on that correspondence, of some weeks ago. No “Sick Certificates” have been submitted since 4th June 2020.

I find that this communication, which was received by the Respondent on 11th June was not self-explanatory. It advised that a claim for unfair dismissals was lodged with the WRC.

I find that it is normal practice in employment for the employee to resign directly to their employer irrespective of the reason, some resignations are pleasant and reflect a good working relationship, others are brief, abrupt and can be bitter, but they are resignations.

In this case no such resignation was given by the Complainant to his employer.

I find that in a constructive dismissal case the Complainant would not be required to give “prior notice” of resignation but would be required to give notification of resignation. In this case it did not happen.

I note the Complainant’s Solicitor has raised the mater that the Respondent did not raise the preliminary point within 21 days of the lodging of the claim with the WRC as requested by the WRC. In fact, the Respondent did not raise this preliminary point until 4th March 2021, some 9 months after the claim was lodged with the WRC.

I find that the request to raise preliminary/legal points within 21 days of receipt of the claim by the WRC is a “request” by the administration of the WRC for the purposes of assisting the process and it has no legal effect.

I refer to the case ADJ 16579, A Stock Control Manager v A Logistics Company which the Complainant relies upon in support of their position. In this case I find that the claim for unfair dismissal was lodged with the WRC during the notice period of the termination of the employment. I find that termination had already been decided and communicated, all that remained was the conclusion of the applicable notice.

Therefore, I do not find that it is applicable to this case.

I refer to the case in Brady v EAT [2015] E.L.R. 1 wherein the High Court referred to the EAT case of Matthews v Sandisk International Limited UD331/2010. Again, this case refers to a situation where a decision to terminate the employment had been made but the notice had not been effected.

In this case the Complainant lodged a claim with the WRC on 4th June 2020 and the Respondent was not notified of this decision to resign until 11th June 2020 at the earliest.

I find that the claim for unfair dismissals under the Unfair Dismissals Act was lodged with the WRC before a resignation had taken place.

I find that there was no dismissal and that the contract of employment had not in fact terminated at the time that the claim was lodged with the WRC.

Therefore, I find that the claim is not properly before me and I do not have jurisdiction to deal with this claim.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the above stated reasons, I have decided that at the time of presenting the claim for unfair dismissal under the Unfair Dismissals Act to the Workplace Relations Commission that there was no dismissal and that the contract of employment had not in fact terminated.

I have decided that this claim is not properly before me and so this claim is not well founded and so it fails.

Dated:   22nd July 2021

Workplace Relations Commission Adjudication Officer:  Eugene Hanly

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