ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00024263

Parties:

	Complainant	Respondent
Parties	Andrei Masnic	ISS Facility Services Limited

Representatives

Marius Marosan

Dominika O'Sullivan The HR Suite

Complaint(s):

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-00031008-001	19/09/2019

Date of Adjudication Hearing: 26/11/2019 and 07/10/2021

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.

The Complainant’s complaint is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment, or it was reasonable for the Employee to terminate his employment (as defined in Section 1 of the Unfair Dismissals Act 1997).

It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.

The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the Employment Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.

Secondly, the employee may allege that he satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for him to resign. That is to say that the employer has conducted its affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving. The test is objective. The test requires that the conduct of both employer and employee be considered. The conduct of the parties as a whole and the cumulative effect must be looked at. 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.

In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment (by reason of Constructive Dismissal) wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 19th of September 2019) issued within six months of his Constructive dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter

In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal grievance mechanisms which might be available in a given workplace before tendering a resignation. I would have regard for the seminal Employment Appeals Tribunal case UD 474/1981 Margot Conway -v- Ulster Bank Limited Wherein the Tribunal stated:

“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”

Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.

Background:

This is a claim under the Unfair dismissals legislation wherein the Complainant claims that he was Unfairly dismissed (by way of Constructive Dismissal). The Complaint is grounded on the Workplace Relations Complaint form dated the 19th of September 2019.

This matter (on the second day of hearing) was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.

I am satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

The Complainant was provided with Interpreter services in the course of this hearing, and I am satisfied that he was not disadvantaged by that process.

Summary of Complainant’s Case:

The Complainant was represented. The Complainant gave oral evidence which was tested by the Respondent representative. I was additionally provided with a helpful submission with appendices attached. The Complainant asserts he was Unfairly Dismissed.

Summary of Respondent’s Case:

The Respondent was represented. Again, I was provided with a comprehensive submission

Findings and Conclusions:

I have carefully considered the evidence adduced over the course of two days of hearing. I do not doubt that the Complainant had been happy in this workplace wherein he commenced his employment in October of 2017. Sometime before April of 2019 there was, he says, a shift in attitude towards him. A new Supervisor had been placed into the workplace who seemed to favour some employees over others when it came to coveted overtime work. In addition, he says that there was a divergence of opinion between him, and a colleague and the Complainant believes that the colleague had the ear of the Management and might have made an issue about the fact that the complainant did not want to give this colleague a lift in his car.

What is not in dispute is the fact that the Complainant was moved to a different part of the building and asked to undertake a different type of job. In fact, the Complainant was asked to spend his days cleaning toilets. The Complainant had no difficulty with demonstrating flexibility, but he says he was given very little instruction and no allowance was made for the fact that the complainant did not speak English. The consequence of inadequate training was that the Complainant made a mistake when combining cleaning chemicals which effected his breathing and respiratory tract. This failure on the part of the Employer (as alleged by the Complainant) resulted in the Complainant being admitted with a cough and shallow breathing.

The Employer on reviewing the incident accepted that it had failed the Complainant in terms of the training required when dealing with hazardous chemicals. However, the Complainant says that the Management were very hard on the Complainant even after this incident. In fact, Management had been annoyed that he had absented himself at all (arising out of an illness) and for so many days (4 days) after the incident. The Complainant became frustrated with the lack of understanding. There followed a protracted period of time during which the Complainant felt he was indefinitely trapped cleaning toilets. He says there was a lack of support and management were highly critical of his efforts. The criticism felt personal to the Complainant.

After nearly four months of what the Complainant perceived to be poor treatment in the workplace, the Complainant summoned up the courage to draft a comprehensive letter of complaint which said letter runs to five pages and is dated the 1st of August 2019. I note that Complainant had a colleague assist him with the letter and that the complaints therein are wide ranging and directed a several named individuals. I do not doubt that the complainant believed that this was the only option open to him and having read the letter myself a number of times I am struck by the honesty and sense of despair. I am particularly cognizant of the fact that the Complainant’s health and self-esteem was deteriorating. I accept that the complaints as articulated should have triggered an immediate Investigation in the Respondent company.

Some five days later the receipt of the Complainant’s letter of Grievance was acknowledged and the Complainant was advised that someone from People and culture would be in touch in due course. There follow two unfortunate facts. The first unfortunate fact is that nobody made an effort to contact the Complainant again for another nine days. The second unfortunate fact is that even when an email was sent nine days later by the People and Culture representative it was sent to an incorrect email address.

I am noting that on a previous occasion the Complainant had organised to meet with a HR representative but had not turned up to the appointed arrangement and there therefore might have been an impression that the Complainant did not tend to follow through.

The next significant event is the tendering by the complainant of his resignation on the 18th of August. I perfectly understand that from the complainant’s perspective a period of twelve days has elapsed since the Respondent company had acknowledged receipt of the complaint. The Complainant says he had no trust or faith in the Respondent company. I accept that it was not an unreasonable assumption on his (the Complainant’s) part to assume that the Employer was not going to allow his Grievances to be aired, investigated and considered in a timely and fair manner.

However, I have to recognise that this assumption, however validly reached, is predicated on false premise as the Respondent company believed it had started the ball rolling on a Grievance procedure when the People and Culture representative communicated with the Complainant in good faith on the 15th of August (albeit at the wrong email address).

On balance therefore I am of the belief that the Complainant was obliged to give his Employer an opportunity to complete a Grievance procedure. I would otherwise be allowing the Complainant to rely on an honest mistake made and one which the said People and Culture representative offered to rectify immediately by way of letter dated the 20th of August 2020.

For the avoidance of doubt I do not accept that the conduct of the employer was unreasonable. No mala fides attached to the mis-sent email. A Complaint was made and the intention was to have it investigated. The decision to terminate his own employment was premature and unnecessary in the circumstances. Even if the Complainant was unhappy in and with the workplace, he was obliged to see the Grievance process through to the end (per the Conway decision referred to). This he failed to do.

I note that there was a background issue concerning the Complainant’s health and that the Complainant had elevated stress and tension. The Complainant’s advocate was concerned that I would have the full picture in this regard. However, I have to accept that these health conditions might well have been ameliorated by the opportunity to have his frustration and Grievance vented in the course of a proposed Grievance procedure.

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.

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

CA-00031008-001 - The Complainant was not Unfairly Dismissed, and his Complaint fails.

Dated: 23-11-2021

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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