ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00030098
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | A Healthcare Company |
Representatives | N/A | Internal Counsel |
Dispute:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00040244-001 | 05/10/2020 |
Date of Adjudication Hearing: 31/05/2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The Worker commenced employment as a Production Operative with the Employer on 21 April 2020. He subsequently successfully applied for a role of Health and Safety Officer and asserted that he understood he would be entitled to a company vehicle as there was a requirement of same for the position and the Employer was aware that he did not own a car. Given the failure of the Employer to provide a vehicle however, he stated that he had no choice but to resign his position and is alleging that he was constructively dismissed. |
Summary of Worker’s Case:
The Worker commenced employment as a Production Operative with the Employer on 21 April 2020. He subsequently applied for a role of Health and Safety Officer when it was advertised and informed the Recruiter at the interview stage that while he had a full licence, he did not have a car. He was subsequently informed on 27 August 2020 that his application was successful and he commenced in the position on 14 September 2020 on a fixed term contract for six months.
Further to starting the role, he sent an e-mail to the HR Manager on 18 September 2020 asking if he could be insured on the company van to access the various sites that the company operated on. On 22 September 2020, he had a conversation about the matter with the HR Manager and she informed him that that she understood he was going to buy a car when he started in the role. He replied that he could not buy a car on a six-month contract and that had he known he would need a car, he would have remained in his previous role.
Later that evening, he wrote an e-mail to the CEO, COO as well as the HR Manager and asked if it would be possible to use the company van in order to allow him fulfil the role. He also highlighted that if he was not given the vehicle, he would be left with no alternative but to resign from his position.
He subsequently received a phone call from the HR Manager the following day wherein he was informed that he would not be given a company vehicle and was asked if he therefore wished to proceed with his resignation. He explained that he would not be able to fulfill the role without access to a vehicle and therefore resigned from his position with immediate effect. He was paid one week’s notice in lieu which he received later than expected.
He also added that the role has since been re-advertised but highlighted that the job specification now stipulates that a car is essential which it did not state when he applied for the position. |
Summary of Employer’s Case:
The Employer’s HR Manager highlighted that while the job advertisement for the Health and Safety Officer role stipulated a “full, clean, drivers licence as travel between sites will be essential”, there was no suggestion made at any stage during the recruitment process, either at interview stage or when the offer was made, that a company vehicle would be provided. She also stated the Worker had been made aware during their conversations about the role that he would need to provide his own transport.
When they learned, after the Worker had commenced in the role, that he did not have his own vehicle, the Employer sought to put in place alternative arrangements, such as facilitating lifts to the work sites with colleagues, given that the travel requirements for the role were both very light and flexible and lifts could therefore be easily arranged. These proposals were rejected out of hand by the Worker who stated that he did not consider it appropriate to be travelling with colleagues in a pandemic.
Further to the rejection of these proposals, the Worker sent an email to senior management on 22nd September wherein he stated that if a company vehicle was not provided, he would resign from position. When he was informed the following day that a vehicle would not be provided, he resigned with immediate effect and was paid one week in lieu of notice. |
Findings and Conclusions:
I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute. On the basis that he had less than the 12 months service, required under Section 2 (1) (a) of the Unfair Dismissals Act, in order to avail of the protections provided by that Act, the Worker referred this dispute to the Workplace Relations Commission under the Industrial Relations Acts and is, in essence, a claim of constructive dismissal.
Section 13 Industrial Relations Acts, as amended, states as follows:
13.— (2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to an [Adjudication Officer].
(3) (a) Subject to the provisions of this section, an [Adjudication Officer] shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—
(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute,
Therefore, in line with the above, I will proceed to investigate the Worker’s dispute and make a recommendation, if appropriate or necessary, arising from that investigation. Firstly, I am satisfied that this case may be informed by the Unfair Dismissals Acts in respect of constructive dismissal cases. I also note that significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy the dual tests of (1) Breach of Contract and (2) Reasonableness. The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. However, it is now also generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. All other reasonable options including grievance procedures must be explored. The reasonableness test requires that the Worker must satisfactorily demonstrate that the Employer behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Worker must also show that their own action/behaviour in resigning was reasonable in all the circumstances.
Unlike a complaint of unfair dismissal, where the burden of proof rests with the employer to show that the dismissal was not unfair, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign based on their employer’s conduct.
As already stated significant case law exists which underpins the above concepts. For example, with regard to the burden of proof, the Employment Appeals Tribunal (EAT) held, in UD 1146/2011, that “in such cases [constructive dismissal] a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.
This was further confirmed in the case of Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84), where it is stated that: “the onus is on the claimant to prove his case” and that “the test for the claimant is whether it was reasonable for him to terminate his contract”.
It is also well established that a Worker is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”
The behaviour of the employer in such scenarios is referred to by the EAT in Donnegan Vs County Limerick VEC [UD828/2011] where it is stated: “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”. In the context of the various authorities as set out above, it is clear that the Worker, in the instant case, must demonstrate that the Employer has behaved so inappropriately and/or unreasonably that he was left with no option but to resign. In addition, the Worker is required to demonstrate that his behaviour was reasonable and appropriate in all of his interactions with the Employer in relation to the issues which constituted the dispute between them.
I note that there is a dispute between the Worker and the Employer in relation to whether there was a requirement that he own a car to fulfil the position. While the Worker stated that he understood from the interactions during the recruitment process that he would need a licence but would not be required to own a car, this was vigorously disputed by the Employer who emphasised that it had been highlighted repeatedly through the process and again at offer stage that the position required the Worker to own a car. Having subsequently been made aware that the Worker did not have his own car however, I note that alternative arrangements were proposed by the Employer such as facilitating lifts to the work sites with colleagues but these were rejected outright by the Worker. I find the rejection of these proposals to be unreasonable and believe that the Worker should have engaged further with the Employer on these proposals.
While I also note that the Worker considers that he invoked the company’s grievance procedure when he set out his complaint about the non-provision of a company vehicle in his email of 22 September, I consider, given the content of the email, that this represented more of a threat to resign than a genuine attempt to raise a grievance. In any event, even if this email could be considered as an attempt to invoke the grievance procedure, I find that he did not fully exhaust the process, outlined in the Employee Handbook, because when the Employer’s HR Manager met with him the following day to inform him that he would not be getting a company vehicle, he resigned on the spot rather than requesting and waiting for a formal response in writing to his alleged grievance which he had only raised the day before and seeing the process through to its conclusion. As well as finding that he failed to exhaust the company’s grievance process, I also believe that the Worker had another option if he genuinely did believe that he needed a car to fulfil the role and considered it unreasonable to rely on lifts from other employees. Specifically, it is incomprehensible why, he did not seek to return to the role of Production Operative with the Employer, a position which he had fulfilled less than 10 days previously and one in which he was initially employed. In summary, while I consider that the Employer acted reasonably by offering the Worker alternatives ways of getting to their sites when they realised that he had no vehicle of his own, I believe that the Worker acted unreasonably when he: (i) rejected these proposals outright (ii) resigned precipitously without exhausting the company’s grievance process and (iii) did not seek to return to the role he was doing less than 10 days previously |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I find that I cannot make a recommendation which is favourable to the Worker for the reasons set out above. |
Dated: July 12th 2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
Constructive dismissal |