Complainant

Respondent

Parties

Darren  Keavney

International Windscreens Ireland Ltd t/a AAA Mobile Windscreens

Complainant

Respondent

Representatives

  Self-Represented

DM Macaulay & Co 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-00042471-001

13/02/2021

The issue in contention concerned the alleged Constructive Unfair Dismissal of the Complainant, a Glass Technician by a Mobile Auto Glass Replacement Company. 

The employment began on the 1st June 2018 and ended on the 2nd December 2020.

The rate of pay was €600 Gross for an average 45-hour week.

The Complainant submitted a detailed Written Statement and gave extensive Oral evidence at the Hearing.  (Adjudicator note: Supporting written statements were provided by his Partner and a former Work colleague. As neither were present at the hearing to be cross examined these documents had to be treated as Hearsay evidence only.)

The Complainant submitted a detailed list of Windscreen replacement jobs on major farm / construction machinery where he alleged normal Health and Safety requirements were flouted. He was forced to use very inadequate height access equipment and regularly had to seek the assistance of the customers. Quite often the only customer person available would be elderly and completely unsuitable. He was forced to undertake many jobs on a one-man basis where clearly it was two-man job. Detailed photographic evidence was supplied of various jobs. He was nearly always, in comparison to colleagues, tasked with jobs that were far away and involved considerable driving there and back. Glass deliveries to his house, necessary for work, were always late. The glass delivery van had often to pass by his house to make deliveries to other staff first, clearly on Office instructions.

The Complainant suffered as serious Workplace injury in April 2019 which resulted in his being off work for a considerable period.

The Van he was supplied with by the Respondent Company was seriously defective with leaking windows, broken hydraulic door jams and serious exhaust fume entry to the cabin.

The attitude of the Owner Manager, Mr. H, was aggressive and abusive toward the Complainant. Phone calls of the 21st and 29th January 2020 were specifically referred to. An office employee, Mr. C, a Manager, was particularly abusive and he was regularly called “Stupid and Lazy” by Mr.C.

During the Covid pandemic he was not provided with any suitable PPE, despite numerous requests. He was often asked to transport other, unmasked, employees in his van. The Complainant felt that other employees were being treated better than him, had good uniforms and modern vans while he was given little in the way of protective clothing and had an ancient mechanically unreliable and seriously unsafe van. All things considered the Employer was in complete breach of the Safety, Health and Welfare Act,2005.

The Complainant stated that he had attempted to raise his concerns in an email letter to Manager DK on the 30/10/2019. The letter was effectively ignored. Eventually the Complainant felt that enough was enough and he had no option but to resign.

The Respondent relied largely on Oral evidence from the Managing Director, Mr. H and a colleague Manager, Mr. M.

The Respondents strenuously denied any Health and Safety issues- their motor van fleet was regularly serviced and had passed all Depart of Transport examinations. The van driven by the Complainant was completely roadworthy.

The nature of the work on agricultural vehicles could on occasion be difficult but perfectly within all Health and Safety guidelines. The Company had a fleet of some 40 vans on the road and other staff were not complaining or making H&S complaints. There had never been an adverse finding from the HSA against the Company. If on occasion a customer was asked to assist the Technician this was done “on the hoof” depending on the exact job situation. It certainly was not Company policy. The Complainant had been trained in Manual Handling and a cert was submitted in evidence,

It was accepted that on occasions direct talk on the phone may have taken place between the Office and the Complainant regarding jobs and his schedules, but this was no more or less than would happen with any other Technicians. It was direct but not anything remiss.

The Complainant had secured a much more financially rewarding job in a Computer /IT Manufacturer and had gone there. He had worked fine with the Respondent and they never had any complaints regarding his work.

In cross examination from the Respondent Legal Advisor the Complainant agreed that he had started a new and much more lucrative job in a major Computer company immediately on leaving the Respondent. In fact, there was a minor cross over between working for both Companies. The Complainant agreed that he had started looking for other jobs well in advance of his resignation. He justified this on the basis that he had heavy family responsibilities and could not be without an income coming in.

The Respondent Legal Advisor pointed to the standard Constructive Dismissal Legal tests – Breach of Contract and Unreasonable Behaviour. On neither ground was the Respondent liable. The Complainant had simply failed, legally, to properly base his case for Constructive Dismissal.

In addition, notwithstanding that he had no legally sound case, he was at absolutely no financial loss having immediately secured a much better paid position.

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, all cases rest on their own facts and evidence and these are considered below.

3:2        Consideration of Evidence / Written and Oral / Constructive Dismissal

To best consider this it is useful to utilise the Constructive Dismissal tests of Breach of Contract and unreasonable Behaviour

3:2:1       Breach of Employment contract.

On the basis of all the evidence there was no fundamental breach of the employment contract per say. The Complainant was paid for his work and his holidays. An adequate Contract of Employment was exhibited in evidence.

However, in relation to the evidence given, particularly Orally by the Complainant and supported by his photographic evidence it appeared that the Duty of Care on an Employer, as a fundamental part of any Employment Contract, to provide a safe place and systems of work may well have been subject to question.  The Employer appeared to be of the view that “the work was the work “- it could be difficult on occasions but nothing extraordinary.  Scheduling of jobs was a challenge for the Office as the customers were spread widely across the Country. Monitoring how long jobs were taking was essential as regards scheduling for next customers.

All other employees just got on with their scheduled jobs. There was not any pattern of other employees complaining or raising H&S complaints.

The claim before the Adjudicator is under the Unfair Dismissals Act,1977 and not the Safety, Health a and Welfare at Work Act,2005.  An examination under this latter Act could deal definitively with the Health and Safety issues.

Accordingly, while the evidence pointed to strong Health and Safety questions these are not within the ambit of the Unfair Dismissals Act,1977.

In conclusion, therefore, the answer to the first Constructive Dismissal test has to be, from the evidence, that the Contract of Employment was not breached in any basic legal employment related manner that would allow a “reasonable” person to justify a resignation.

3:2:2        Unreasonable Employer / Employee behaviours.

The Legal test for this is that the Behaviour complained of has to be so completely unreasonable, in plain English, so down right bad and obnoxious as to justify a resignation.

The evidence presented here, both Orally and in Writing by the Complainant, indicates that the Employer behaviours, both at Office level and generally was border line unreasonable. In reviewing this evidence, I was aware that all Parties were under Oath.

The continuous practice of one man doing what was clearly a two-man job was unreasonable. The need to request Customer assistance in many occasions was not a reasonable approach by an Employer. The situation regarding proper PPE during Caviid and request to carry extra personnel in his van during Covid was not what a Reasonable employer would have done in the circumstances.  The Complainant had clearly informed the Respondent that he had breathing/inhaler issues that made his requests legitimate.

The scheduling of work, monitoring calls from the Office during work, driving distances and the apparently odd pattern of glass deliveries again seemed unreasonable to an outside observer.

The answer or lack of answer to the e mail/letter of the 30th October 2019 was contested. On the balance of probabilities, it appeared to have been answered verbally but there were few details of any follow up meetings as might have been expected.

In the balance the Complainant appeared to have worked away without much complaint during most of 2020. There was no evidence of any Safety referrals to the HSA for example - these can be done anonymously.

It was also clear that, as raised and discussed by the Respondent Legal Representative, the Complainant was actively looking for other work for most of 2020. It is accepted common knowledge that to secure a position with the major computer/IT manufacturing facility, that the Complainant moved to, a lengthy application, aptitude tests etc process is required.

From the evidence it appeared that the Complainant had serious issues with the Respondent job and was determined to leave at the right opportunity. There appeared to be reasonable grounds for this position.

On balance and to answer the Test as referred to above the Employer behaviour was borderline unreasonable but has to be seen in context.

3:3        Final Conclusion

In considering a final conclusion the key question in a Constructive Unfair Dismissals case of this nature and context is whether or not the Complainant’s unhappiness together with the alleged Respondent Unreasonableness was a sufficient ground to base a Constructive resignation on?

In attempting to answer this question the argument of the Respondent Legal representative has to be borne in mind. The Complainant had secured a very good position with a very reputable International IT/Computer manufacturer at a considerably enhanced wage.

In plain language the question has to be - did the “Pull” from the new position far exceed the “Push” from the existing job?

The Complainant had worked, without complaint, for over twelve months since he made his safety /conditions complaint in late October 2019. There was no evidence to suggest that, although he was unhappy, he would simply resign out of desperation with his conditions. The Complainant strongly argued that his family responsibilities forced him to stay in the Respondent job.

In this context the evidence can only lead to the conclusion that the “Pull” as referred to above clearly exceed the “Push”.

However, in a strictly Constructive Dismissal case, the Employer behaviours and working conditions were borderline unreasonable and legally the bar to justify a Constructive Dismissal has been met.

Constructive Dismissal, under the Unreasonable Behaviours test, has been proven, albeit marginally.

Constructive Dismissal