Complainant

Respondent

Anonymised Parties

A Facilities Assistant

An Accommodation Provider

Representatives

  N/A

N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00043556-001

13/04/2021

The Complainant was employed part-time as a Facilities Assistant with the Respondent from 5th of October 2020 until the 24th of February 2021. He stated that he was forced to leave his employment because of the Respondent’s failure to address concerns he had raised about their adherence to the Covid restrictions.

The Worker stated that he was employed by the Respondent as a Facilities Assistant from 5th of October 2020 until 24th of February 2021 and worked part -time. He asserted that a number of issues arose during the course of his employment, particularly in relation to adherence to the Covid-19 Regulations. Specifically, issues were raised by him in relation to students/residents using the gym during Level 5 restrictions. In addition, he stated that although he began on a roster where he worked a weekend shift between two of the Respondent’s premises, his manager requested in December 2020 that he be stationed at just one of those buildings as she wanted him to utilise more of his skills there. He claimed that he ended up getting no break from his work there however because it was twice as big as the other building. In addition, the cleaning contractor was laid off in December 2020 and he and other workmates had to do the cleaning or were told they would face the prospect of losing their jobs

The Complainant also stated that while he was on duty, the local garda sergeant visited his workplace in December 2020 to see if they were following restrictions and stated that both he (the Complainant) as well as the Respondent could be fined if the gym was being utilised by more than one individual, as set out in the regulations at that time. The Complainant stated that the Respondent had an internal system for students to book an individual session during Level 3 but when Level 5 restrictions commenced and the bookings should have stopped, they continued which meant that the gym became a health hazard. The Complainant further stated that his assistant manager informed him that the gym was a common area and students had the right to use it. The Complainant asserted however that all gyms were closed nationally and felt undermined by his assistant manager and became stressed at work as a result.

The Complainant also had to deal with an extremely difficult incident which involved a man entering the premises and using the gym unlawfully. This ultimately resulted in the Complainant having to call An Garda Síochána to the premises to deal with the matter. He stated that this incident could have been prevented if the gym was closed. On multiple occasions, the Complainant and his colleagues encountered other people within the building who were allowed in by other students who knew them. This caused him significant stress and he attended his doctor who certified him unfit to work from the period of the 22nd of February 2021 until the 8th of March 2021 and during this time he made a conscious decision to hand in his notice as he felt that it was safer for him not to return to work in the circumstances. He stated that he had verbally relayed his welfare concerns and his duties under the health at work act to his assistant manager who asserted that she did not want him to upset the students and to let them use the gym. He was also informed via an email that the mental health of the students was more important than his safeguarding at work during Covid. He also claimed that he was told to break the law at work which was putting his health and that of his family at risk.  

He further stated that since he left his employment, three other work colleagues had also resigned.

The Respondent stated that the Complainant was on a temporary contract which commenced on 5th October 2020 and was extended until 5th April 2021.

The Respondent also asserted that it complied fully with the government guidelines during the Covid 19 restrictions and that no complaints were raised by the Complainant during his period of employment.

The Complainant resigned from his position via email with immediate effect stating that he was leaving to due to personal reasons.

I have carefully considered the written and oral submissions made by the parties in relation to this dispute.

On the basis that he had less than the 12 months service, required under Section 2 (1) (a) of the Unfair Dismissals Act, in order to avail of the protections provided by that Act, the Worker referred this dispute to the Workplace Relations Commission under the Industrial Relations Acts and is, in essence, a claim of constructive dismissal.

Section 13 Industrial Relations Acts, as amended, states as follows:

13.—

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to an [Adjudication Officer].

(3) (a) Subject to the provisions of this section, an [Adjudication Officer] shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute,

Therefore, in line with the above, I will proceed to investigate the Complainant’s dispute and make a recommendation, if appropriate or necessary, arising from that investigation.

Firstly, I am satisfied that this case may be informed by the Unfair Dismissals Acts in respect of constructive dismissal cases. I also note that significant legal precedent exists which establishes that, in a constructive dismissal claim, I must examine whether there has been a breach of either the contract or the reasonableness tests.

Contract Test

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as 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.

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed.

Reasonableness Test

The reasonableness test requires that a worker must satisfactorily demonstrate that the Employer behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. This was confirmed in the case of Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84), where it is stated that: “the test for the Complainant is whether it was reasonable for him to terminate his contract”.  It is also well established that a Worker must behave reasonably and is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve his or her grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated:  “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.”.

As there was no suggestion that the Respondent breached the contract test in the instant case, I must examine the reasonableness of the actions of both the Complainant and the Respondent. I note the Complainant’s assertion that he had to leave his employment because of the failure of the Respondent to ensure the Covid guidelines were adhered to and that his health and safety was compromised as a result. In the context of the various authorities as set out above, it is also clear that where a worker decides to resign his employment however, he must invoke the grievance procedure where he believes the behaviour of the Respondent is unreasonable, if he wants to succeed in a complaint for constructive dismissal. I note that in the instant case although the Complainant verbally highlighted concerns he had with the Respondent, he failed to invoke the grievance procedure at any stage prior to his resignation. In addition, it is notable that he failed to inform the Respondent in his letter of resignation as to the alleged reasons behind his departure.

In all of the circumstances therefore, I cannot make a recommendation that is favourable to the Complainant.

I cannot make a recommendation that is favourable to the Worker for the reasons set out above.

Constructive dismissal