Complainant

Respondent

Parties

Billy  Harris

Scoil Chaitrióna Cailíni

Representatives

Tom O'Hare of O'Hare O'Dwyer Solicitors

Liam Riordan of  Mason Hayes & Curran

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-00040628-001

27/10/2020

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

CA-00040628-002

27/10/2020

The complainant says he was constructively dismissed.

The complainant was employed by the respondent, a senior National School, from October 2020 as a Caretaker. He also worked for the junior school on the same site, and he worked for 20 hours per week for each school. He had no issues until 2019.

He submits he first informed the Principal of problems with the fire alarm in November 2018. He informed her again around July/August 2019 and work began in August. But was stopped by the Principal on 24 August. It started again on 26 August and was stopped again in September 2019. The complainant told the Principal how unhappy he was the work had been stopped and this led to a breakdown of communication between them.

On 16 October 2019 there was a major fire in the school and that morning, at the scene of the fire, the Principal told him to say nothing about the alarm. He submits this put him in a terrible position and he lost faith in the Principal.

He assisted in every way possible to get the school up and running again. However, from the day  of the fire until January 2020 he had no communication from the Principal. They had a brief meeting on 20 January and he requested an official meeting between himself, the Chair of the Board of Management and the Principal. This took place on 21 January 2020, with his wife present as a witness. He did not consider his concerns (the main issue being the fire alarm) were taken seriously. He went on stress related sick leave after the meeting. He also contacted the Board of Management and requested a meeting with the full Board of Management. This did not take place until 29 July 2020. He considered the Board of Management had failed to address his issues and felt he could not return to work. He submits this amounts to constructive dismissal.

The respondent submits the Principal and the Chairperson of the Board of Management met the complainant in January 2020 in an unsuccessful attempt to resolve his issues. At the end of the meeting the complainant produced medical certificates confirming he was not fit to attend work. He did, however, continue to work in the junior school. Following this meeting the complainant sent a letter to the Board of Management setting out his issues with the Principal and requesting a meeting with the Board.

In February and March there was correspondence between the complainant and the Chairperson of the Board of Management regarding his sick leave and submission of medical certificates. In March and again in July 2020 he was assessed by Medmark as being fit to work. However, he did not return to work.

The Board of Management met the complainant in a specially convened meeting on 29 July 2020. He was given plenty of time to air his grievances with the Principal. The Principal and Chairperson attended the meeting and responded to the complainant’s grievances. They recused themselves from consideration of the issues raised and left the meeting at the same time as the complainant. The Board found that none of the complainant’s grievances against the Principal had been substantiated and he was directed to return to work with immediate effect. He was also offered mediation to facilitate his working relationship with Principal. He did not confirm his return or that he would work under the direction of the Principal. In doing this he terminated his employment with the school.

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment. The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““dismissal”, in relation to an employee, means—

(b) 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 legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[1]. It comprises of two tests, 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.”

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.

In relation to the “reasonableness test” the complainant contends that his issues were not addressed. He had a meeting with the Principal and requested another meeting to include the Chair of the Board of Management. When he considered this meeting did not address his grievances against the Principal he requested a meeting with the full Board of Management. At this meeting the complainant was given a lot of time to air his grievances and the Principal and Chair were at the meeting to put their side to the grievances. Neither were involved in the Board’s deliberations.

The outcome was emailed to the complainant on 31 July 2020 and the letter stated: “I have to say the Board experienced great difficulty in understanding the specifics of your grievance against the Principal. However, the Board noted that when the Principal responded factually giving detailed information in relation to the allegations you had made, you repeatedly refused to accept the factual clarification provided by the Principal. On balance the Board accepted the account of events as set out by the Principal in her response both orally and in writing to your allegations. The Board concluded that none of your stated grievances against the Principal had been substantiated.” The complainant was asked to confirm he was willing to take direction from the Principal and return to work. On 5 August the complainant replied by email and said “The Board failed to address my issues. I am in no position to confirm as to when I return to work.”

The complainant was given the opportunity to put his grievances in two meetings but he did not accept the outcomes. The Board accepted that he had difficulties with the Principal but the Board on Management concluded there was no substance to his grievances. He was asked to return to work and offered mediation to facilitate this. The complainant decided to stay away from work.  

It is well established that in advancing a claim for constructive dismissal an employee is required to show they had no option in the circumstances of their employment other than to terminate their employment. This requirement places a high burden of proof on an employee to demonstrate they acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve their grievances with their employer.

Having regard to the totality of the evidence adduced, I find that the standard of reasonableness required to substantiate a claim of constructive dismissal has not been met where the Complainant did not respond to the outcome of his grievance meeting with the Board, other than to say they had failed to address his issues.

In relation to the “contract test” the Complainant has made no claims that the Respondent breached his contract of employment. Therefore, I find no evidence to suggest that the Respondent was guilty of conduct which amounted to a significant breach going to the root of the contract of employment, or which demonstrated that the Respondent no longer intended to be bound by one or more of the essential terms of the contract.

Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was so unreasonable or was such that he had no option but to resign or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. In the circumstances, I find that the Complainant left his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that the complaint cannot succeed.

For the reasons given above, pursuant to Section 8 of the Unfair Dismissals Act 1977, I find that the Complainant left his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977 and the complaint is not well-founded.

Constructive dismissal – not well founded