Complainant

Respondent

Parties

Michael Dodd

Securitas Security Services Ireland Limited

Representatives

Not represented

Conor O'Gorman, IBEC

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-00043213-001

23/03/2021

The complainant commenced employment with the respondent in November 2018.  He was assigned as a security officer in a multinational business in Cork, working three 12 hour shifts one week and four shifts the following week.  His weekly wages were €575.00 and he said that he occasionally worked overtime.

In January and February 2021, the company initiated a disciplinary investigation after the complainant removed the cover from a fire alarm unit, on the instructions of the alarm maintenance contractor.  He resigned on February 22nd 2021, before the investigation was completed.  He claims that his resignation amounts to a constructive dismissal.

In early January 2021, the complainant’s site leader told him that there was a fault in a fire alarm in a particular location of the building in which he was providing security.  He said that the alarm went off twice that evening, and that he checked the panel, checked the area and re-set the alarm.

When he was at work on January 7th 2021, the complainant said that the same alarm activated 27 times in one hour.  He contacted the site leader, and he said that he was advised to phone the out of hours number of the alarm company.  He phoned the company and he said that the technician he spoke with was in Dublin and he told him that it would take three hours to get to Cork.  The technician told the complainant that he would talk him through how to remove the cover from the alarm to stop it going off.  He said that if it was constantly activated, a full alarm would activate.  With the technician on loudspeaker on his phone, the complainant said that he stood on a chair and followed his instructions and removed the cover from the alarm and placed it on a desk with a note.  The technician said that he would travel to Cork on Monday to fix it.  The complainant said that he sent a message on WhatsApp to the site leader and he heard nothing back.

When he arrived at work the following Monday, the complainant said that he was shocked to find that his site leader had written an incident report about the fact that he removed the alarm cover.  On January 14th, he received a letter from the operations manager, telling him that he was being investigated for eight separate issues.  A copy of the letter issued to the complainant was submitted in the respondent’s book of documents.

In the letter of January 14th, the complainant was informed that he was “temporarily removed” from the multinational client’s site.  He was not assigned to any other site and he was paid his wages, pending the outcome of the investigation.

A meeting took place on January 25th 2021, the purpose of which was to investigate the incident that occurred on January 7th.  The respondent decided to proceed to a disciplinary investigation, and a meeting was held on February 12th.  The complainant provided the minutes of this meeting in the documents he submitted to the WRC.  The manager who hosted the disciplinary meeting decided that the initial investigation should be re-opened.

The complainant was assigned to another site in Bandon, County Cork; however, he said that he couldn’t take on that job because there was no public transport from where he lives in Kinsale.  He said that he was advised by the HR manager that he would not be going back to his original site. 

The complainant went on holidays on February 15th.  He said that he was worried and stressed out.  He said that his union official advised him that he was at “a dead end” and that he wouldn’t be placed back on the multinational site.  He said that he decided to look for another job and he started in a new job in the first week of March, although on the form he submitted to the WRC, he said that he started in a new job on the day he resigned, February 22nd 2021.

It is the respondent’s case that the complainant has not met the burden of proof to demonstrate that his decision to resign from his job was a constructive dismissal.

During the investigation and the disciplinary meeting to investigate what happened regarding the fire alarm on January 7th 2021, the complainant was represented by his union official.  At the disciplinary meeting on January 12th, they raised a number of concerns about the investigation, as a result of which it was agreed that the process would go back one step and that the investigation would re-commence.  The complainant went on holidays on February 15th and he resigned a week later.  On behalf of the respondent, Mr O’Gorman pointed out that in his resignation email, the complainant said, “I have to move on to bigger and better things.”   

Mr O’Gorman submitted that the complainant was offered an alternative work location, and when he declined that offer, he remained on full pay.  No final decision had been made about the outcome of the January investigation when the complainant resigned.  He did not raise a grievance regarding how he was treated.

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

An employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.”  As a third component to this burden of proof, an employee who decides to resign and who argues that their resignation was because of the conduct of their employer, must demonstrate that they made every effort, by utilising the internal procedures, to have their grievances addressed.

It is apparent from the complainant’s evidence at the hearing, that he was upset at the prospect of not being re-assigned to the multinational site.  He said that he got on well there, that he liked the client and that they liked him.  He said that he followed the site leader’s instructions on the evening of January 7th, and phoned the fire alarm company.  He then followed the instructions from the technician.  He informed his site leader about what he had done.

We know from the case law, (Conway v Ulster Bank[1] and McCormack v Dunnes Stores[2]) that succeeding in a claim of constructive dismissal is a high bar for a complainant.  In the case we are considering here, the complainant cannot point to a breach of his contract, nor can he point to any unreasonableness on the part of his employer, that could have made his continued employment absolutely untenable.  I accept that his preferred option was to return to the multinational site, but at the time of his resignation, that option had not been ruled out, although it is clear that he thought it was.  I have to conclude that, if the respondent decided that it would be in everyone’s interest to assign the complainant to a different location, that, of itself, would not have justified his resignation, as his contract provides that can be assigned to any site within a reasonable distance of his home.

Having listened to the complainant’s evidence at the hearing, I must conclude that he has not met the burden of proof that demonstrates that the conduct of his employer was so unacceptable that he had to leave his job.  I find therefore, that his decision to resign is not compatible with the definition of a constructive dismissal which is set out at section 1 of the Unfair Dismissals Act.

On this basis of the findings and conclusions set out above, I decide that this complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal