Complainant

Respondent

Parties

Eamonn  Moules

Securitas Security Services Ireland Ltd

Representatives

Rory Kennedy BL instructed by Yvonne Dunne Tarrant & Tarrant Solicitors

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-00046542-001

05/10/2021

The Complainant was employed as a security supervisor with the Respondent. He commenced his employment on 12 April 2016 and earned €530 per week. He stated that he was left with no alternative but to resign from his position with the company on 16 April 2021 because he was demoted and moved to another site.

 On 20 August 2020, the Complainant had a disagreement with another security officer, Mr A, in respect of which another colleague, Mr B, made a complaint.

On 18 January 2021, an alleged incident arose whereby Mr B alleged threatening and abusive behaviour by the Complainant following an issue pertaining to where a vehicle had been left overnight.

On 1 February 2021, the Complainant received a letter by email from the Assistant HR Manager, informing him that the Respondent had received a complaint in relation to inappropriate behaviour by him towards a work colleague. The letter advised him that the Respondent had "no alternative but to temporarily remove [him] from working on site in Rathdrum with immediate effect pending a full and comprehensive investigation into these reports." The letter further stated that "removing [him] from working in Rathdrum is not a disciplinary sanction, as it merely allows an investigation to be undertaken."

By further letter dated 3 February 2021, the Complainant received further correspondence from the Respondent which included reports from Mr A and Mr B regarding the alleged incident on 20 August 2020 and also a report from Mr B regarding the alleged incident on the 18 January 2021. The letter invited the Complainant to attend an investigation meeting to discuss the alleged inappropriate behaviour on 5 February 2020. The letter also advised both that the meeting was to be held in strict confidence and no other party was permitted to attend.

On 24 February 2021, the Investigator forwarded the findings of her investigation advising that the company would be in touch regarding the next stage of the process.

By letter dated 12 March 2021 from the Branch manager, the Complainant was advised that the matter had had been escalated to a disciplinary meeting, which was scheduled for 19 March 2021. The letter further advised the meeting would be held in accordance with the company's formal disciplinary policy outlined in the Respondent’s handbook, that the meeting could result in disciplinary action and that natural justice and fair procedures would apply when conducting the hearing. He was also advised of his right to union or colleague representation during that meeting.

By letter dated 29 March 2021 sent via email on 30 March 2021, the Complainant was advised of the outcome of the disciplinary meeting conducted by the branch manager. The findings included that the Complainant in his capacity as a supervisor had accepted that he acted inappropriately towards his colleague Mr A on 21 August 2020 and Mr B on 18 January 2021.

The Complainant stated that the branch manager did not interview any other persons as part of the disciplinary process and made his decision on the findings of the investigation. It was also found that the Complainant had breached the company's workplace bullying and harassment policy by undermining his colleagues and their right to dignity in the workplace. As a result, the Complainant was permanently removed from site in Rathdrum, demoting him from his current position within the company as site supervisor and a 12 month first written warning was placed on his file effective from 29th March 2021.

By further email dated 1 April 2021, the Complainant wrote to the HR Manager asking her to clarify his position within the company and where he was to be transferred to. He stated that he had been told HR would be in touch with the next steps and he felt at that stage he needed clarity on the case as it had been ongoing since 1 February 2021. He also inquired as to whether there was any update on a query, he sent her regarding emails. Ms Collins again replied advising she would check this out and revert.

On Thursday April 8 2021, the Complainant emailed the HR Manager advising that he would be resigning on 16 April 2021 and asked if she could respond to his queries in relation to the fabrication of threatening emails which he had been accused of sending to his co-workers as he believed this allegation had taken his character and left his position with the company untenable. The HR Manager confirmed receipt of the Complainant’s email dated of 8 April 2021 and requested that he return all items of property belonging to the company. The letter further advised that final monies owed would be paid to his bank account in the next pay period following his resignation date and upon receipt of his uniform. In a later email also dated 8 April 2021, the HR Manager enclosed a copy of an email the Complainant had requested.

On 15 April 2021 the Complainant sent a further letter to the HR Manager referring to the email furnished pertaining to the allegation levelled against him (the Complainant) that he was pretending to be from head office. The Complainant also advised that for the previous ten weeks, while he was on suspension, he had been rostered to a construction site in Carlow but did not have the appropriate safe pass to be on the site. He further stated that on 2 April he asked his line manager if he was rostered in Carlow for the foreseeable future because nobody had confirmed any details with him and the Respondent replied to him advising that he didn't know and he would contact HR and get back to him, which he failed to do. He also stated that the Respondent had destroyed his character by stating that he fabricated emails portraying they were from the company head office and left him in a situation whereby his position was untenable.

In early 2021, complaints of bullying were made against the Complainant. In accordance with company procedure, the Complainant was removed from the site where the alleged bullying took place. An investigation was held and the allegations were upheld.

The matter was put forward for a disciplinary hearing which took place on March 19, 2021. The Complainant was advised of his right to representation and chose not to exercise it. In the disciplinary hearing the Complainant accepted that ‘[he] was wrong’. He also highlighted that there were issues between him and one of the employees who had made the complaint and alleged that he had a personal issue with the Complainant.

The deciding manager took all this into account and decided that a written warning was the appropriate sanction. The Complainant was stepped down from his supervisor role and permanently removed from that site. The Complainant was advised of his right to appeal but chose not to exercise this right. In the following days, the respondent was sourcing an appropriate site to redeploy the Complainant.

The Complainant resigned his employment on April 8, 2021 by email. He stated that the reason for his resignation was ‘the fabrication of threating emails (sic) which I have been accused of sending to co workers, as I feel that this allegation has taken my character and left my position untenable.’

The Legal Framework

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…”

As a complaint of constructive dismissal, the burden of proof rests with the Complainant to show that his decision to leave his job was reasonable in the circumstances that prevailed at the time.  The issue for decision in this case is if it was reasonable for him to give notice of his resignation on 8 April 2021, and to assert that, because of how he was treated by him employer, no other course of action was open to him.

In order for a decision to me made in his favour, the Complainant must satisfy at least one of two tests, known as the “contract test” and the “test of reasonableness.”  These were set out in 1978 by Lord Denning MR in the seminal decision in Western Excavating (ECC) Limited v Sharp[1].  The contract test was summarised 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 discharged from any further performance.”

The reasonableness test also assesses the conduct of the employer, and whether,

“…the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with any longer…If so, the employee is justified in leaving.”

It is clear from the case law such as Conway v Ulster Bank (UD474/1981) and McCormack v Dunnes Stores [UD1421/2008] that a Complainant must overcome a high bar to succeed in a claim of constructive dismissal. 

In the instant case, the Complainant asserted in evidence that the demotion of him from his position of security supervisor and the transfer of him to another site a much greater distance from his home caused him to resign his position with the Respondent. Specifically, it was asserted that this represented a fundamental breach of his contract of employment given that there was no clause in his contract which provided for such a demotion. In considering this argument, I note firstly that in the email sent by the Complainant on 8 April 2021 terminating his employment, he made no reference to the demotion and attributed his decision to resign to an allegation that he had sent threatening emails to work colleagues which he claimed impugned his character. In addition, I noted that the Respondent’s Workplace Bullying and Harassment Policy provides for an employee to be transferred to another work location where a complaint of bullying is upheld as it was in this case.

It is clear from the aforementioned case of McCormack v Dunnes Stores that the test of reasonableness requires that an employee who claims that they resigned because of the conduct of their employer must show that they made every effort, by utilising the internal procedures, to have their grievance addressed:

“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.”

In the instant case, I note that although the Respondent had a grievance procedure in place, the Complainant chose to resign, prior to utilising it and I find that this was unreasonable. Furthermore, even if I accept that the demotion and the transfer was the reason behind his resignation, which for the avoidance of doubt I do not, I also noted that he failed to appeal the outcome of the disciplinary hearing which outlined the reasons behind his demotion, and which he stated in evidence caused him to resign, despite the termination letter explicitly providing for an internal appeal.

In summary, I find both that the Respondent has not breached the contract of employment in a way such that it was reasonable for the Complainant to resign and that he has undermined his argument that the Respondent acted unreasonably by his failure to attempt to resolve his grievances before he resigned. 

I find that the Complainant was not unfairly dismissed for the reasons set out above.