Complainant

Respondent

Parties

Aleksandrs  Gusevs

K.D.S. Joinery Ltd

Representatives

  Self - Represented

Kate Breen, Solicitor of Julie Breen 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-00039030-001

04/08/2020

The issue in contention is the alleged Constructive Unfair Dismissal of the Complainant by the Respondent. The Complainant made a number of allegations regarding unsafe working practices/equipment at the place of work. This situation lead to him feeling forced to resign.

The employment commenced on the 21st May 2018 and ended on the 23rd June 2020.

The rate of pay was €520 gross for a 40-hour week.

The work carried out by the Complainant often required heavy lifting especially of fire proof doors. In 2019 the Complainant began to have pains, but he did not report them. In March 2020 he had severe pains but kept on working. In July he was diagnosed with haemorrhoids. He decided to give up work and resigned on the 22nd of July 2020. He gave two weeks’ notice but on the 23rd he was sent home “Immediately” by the Respondent Employer. The Complainant referred to a number of instances over the last 2 years where heavy items had fallen on him especially in late June of 2020 when he suffered a concussion. He consulted the GP in the local Irish Health Centre and his Doctor in his home country. They were of the view that he had sustained a long-term injury. He is currently out of work due to his health condition. In addition, the Employer Manager, Mr AW, was always very derogatory and would shout and curse at him.

He wished to continue working but the attitude of the Manager and the Health incidents had made this impossible. He was effectively forced out and has a claim of Constructive Dismissal as a result.

The Complainant was self-represented and gave his own verbal evidence to support his written complaint.

The Complainant resigned on the 22nd of July 2020. His written letter of resignation was produced in evidence. It was accepted that lifting of doors was part of the job, but the Complainant was never expected to do this without assistance. The Respondent was in the process of seeking a proper mechanical device to lift doors, but the Complainant described the Management efforts as a “waste of money” and refused the device. The quote for the lifting device was in the evidence. It was from are reputable established Company in this field.

The statements from the Complainant that he began experiencing pain in mid-2019 were never reported and the Complainant took no time off. Likewise, the alleged lifting incidents in August 2019 and June 2020 were never reported to Management. Accordingly, they had no idea of the incidents and could not have investigated them as they knew nothing about them.

On or about the 3rd July 2020 the Complainant reported felling unwell and was advised by Manager Mr. AW to go to his Doctor. Manger, Mr. AK inquired as to the illness, but the Complainant declined to provide any details believing it was his right to refuse details to an employer.

The Complainant was on Sick leave from the 7th to the 9th of July 2020 but made no contact with the Respondent. On his return he was questioned as to his absence as per his Contract of Employment. The Complainant was dismissive of the legal validity of the Contract and sought payment for his absence. This was declined.

On the 22nd of July the Complainant gave in a written note of resignation. In the note there were a number of allegations regarding safety and the Respondent though the best course of action was to ask the Complainant to immediately finish up and be paid in lieu of notice and holidays. This took place.

The Respondent Legal advisor pointed to the standard Legal Burden of Proof tests required to sustain a Constructive Dismissal case. These were the grievous Breach of Contract and Unreasonableness Behaviour tests. In addition, the key issue of affording the Employer a reasonable opportunity to investigate matters, hear grievances and employee complaints was raised.

Case law was cited in support – Harkin v Guinness Storehouse Ltd, an EAT case, Murray v Rockabill Shellfish Ltd, Conway v Ulster Bank. (UDA 474/1981) and Berber v Dunnes Stores (2009 ELR 61)

On all these legal grounds the Complainant had absolutely no basis to ground his claim.

Company Managers Mr. AK and Mr. AW gave oral evidence in support of the written submission. There was a degree of discussion regarding incidents pre-Christmas 2019 where the Complainant was apparently laid off for approximately three weeks but was brought back in January 2020 as the volume of work had increased. It was very unclear as to what had exactly happened pre-Christmas save that some hot words were exchanged between the parties but had resolved in January.

The Managers stated clearly that they always held the Complainant in high regard as a worker and a good craftsman. They had no desire to lose him. If he had adopted a less confrontational approach the issues could have been sorted out in July, but his letter left them with little choice but to pay him his notice and ask him to leave.

3:1        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 “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 oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“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.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

However, all cases rest on their own facts and particular evidence and these will be considered below.

As a useful template the Legal tests are considered in sequence. These being

1.       Breach of the Employment Contract

2.       Unreasonable behaviour

3.       Use/Non-Use of Grievance /Communication Procedures.

3:1:1      Breach of the Employment Contract   

As pointed out above in paragraph 3.1 and in the cited case law the Breach of the Employment contract has to be extremely serious and so bad that any reasonable person would feel that had no choice but to resign. Reviewing all the evidence it was hard to see where the Contract was breached, if it was breached at all, to such a serious degree as to warrant a resignation. All the normal terms such as Pay and Conditions were applied without any incidents.

The Health and Safety allegations came post the resignation and lacked all details. The Employment was a small operation of less than 10 staff and any H&S incidents would have been well known at the time. None of this was in evidence to support the Constructive Dismissal claim

3:1:2        Unreasonable Behaviour

In the Legal Tests the behaviour of the Employer has to be “completely unreasonable”. Reviewing the evidence, both the written Respondent submission, the Complainant’s statement on the Complaint form and the oral evidence of the witnesses from both Parties there was no evidence of completely unreasonable behaviour. The only incident that arose was the contested time off at Christmas 2019 and this seemed to have resolved amicably in January.  The Respondent was addressing with a proposed new Lifting machine any Health and Safety Manual handling issues. The Health issues of the Complainant were not communicated to the Respondent. Even taking the suggested concussion in June 2020 the Respondent was not made aware of this. The Complainant was quite private in his medical information.

All told the evidence did not point to Unreasonable behaviour of a nature to support a Constructive dismissal claim.

3:1:3        Internal Communications/ Grievance Procedures etc.

The Complainant resigned on the 22nd of July 2020 -without any warning or prior discussions with the employer. In the letter of Resignation, he referred to a “Near death” incident but without any details and the “attitude of management.”. In their Oral evidence both Company Managers indicated that they would always have been open to any discussion with the Complainant. The Christmas 2019 incidents indicated that they could sort things out between themselves. The Resignation was abrupt and in view of the tone of the letter they felt it was as well to Pay in Lieu of Notice and immediately ask the Complainant to leave.

In their oral evidence, on Adjudicator questioning, the Managers indicated that they would have been open to discussions with the Complainant in the days following the 22nd of July, but no approaches were ever made by the Complainant. They were well known to each other personally and the Christmas incidents had shown that they could sort things out. However, the Complainant did not seem anxious to make contact while things were still fresh. He accepted that he had not made any effort to contact the Managers in the days after the 22nd July. The Complainant indicated that he had made his decision and that was that

All told the evidence pointed to a considered resignation and no real efforts to discuss issues with Management before the ultimate step.

3:2          Conclusion

Taking the Three legal tests above the evidence does not support a Constructive Dismissal claim.

 Accordingly, the claim has to fail. There was no Constructive Unfair dismissal.

Constructive Dismissal, Unreasonable Behaviour, Breach of Contract.