Complainant

Respondent

Parties

Iain Shanahan

Go-ahead Transport Services (Dublin) Limited

Representatives

Barnaba Dorda ,SIPTU

 Company Management.

The Complainant commenced employment with the Respondent on 1st July 2019, employment ended on 12th May 2021. The Complainant was employed as a bus driver earning a gross wage of approximately €730.00 per week.

This complaint was received by the Workplace Relations Commission on 21st July 2021. A second complaint submitted under s.13 of the Industrial Relations Act of 1969 was received on 10th December 2021, this second complaint has been assigned the file reference ADJ – 000XXXX and will be the subject of a separate recommendation under that file reference.

Both complaints were heard together on 22nd June 2022. Both parties submitted written submissions covering both complaints.

Background

The Complainant commenced employment on or around 1st July 2019 as a bus driver. Initially he found the management team to be very approachable and pleasant.  However, due to changes in the Operations Management Team this gradually deteriorated since December 2019.  The Complainant finally became frustrated with the way he was continuously treated.  Between January 2021 and May 2021 there were approximately six incidents, majority of them the Complainant tried to resolve informally.  However, at a certain point in time, he was signed off work by his GP with work related stress as a consequence of his treatment by his management (on or around 6th April, incident as per below).  These six incidents eventually formed his grievance which he lodged with the Respondent on 27th April.  These six incidents related to:

a)       Informal disciplinary process from January 2021, DM, Assistant Operations Manager alleged that there were some complains made by the control department against the Complainant and gave him an informal sanction, without showing him any evidence.

On or around 7th January 2021 the Complainant was contacted by DM who had informed him about complaints made against him.  The Complainant was on a break, and informed DM of this but DM insisted on proceeding with the discussion after stating that it will just take a couple of minutes.  DM then told the Complainant that he was issuing him with an informal warning on the back of these complaints.

The Complainant asked for copies of both complaints and requested a proper investigation.  On or around 11th January our member emailed his concerns about DM’s behaviour to AW, Operations Manager.  Subsequently the Complainant expressed his unhappiness re his conversation with DM to AW.  He also made a Data Access Request at this point.  In the return email, AW stated that he had spoken to DM.  AW apologised to our member for the interruption while our member was on a break and that DM claimed it was only an informal chat to coach our member on how to keep to his times.

b)      January 2021: issues related to roster, that the Complainant was given disproportionately evening shifts.

When the Complainant commenced employment, he had been told along with other employees, during his initial training that the shift pattern would be a week of earlies, a week of mids and a week of lates.  Since beginning of January 2021 he started to be given long patterns of evening shifts as part of the spare duties roster he was on.  He met with AW and Assistant Operations Manager AC where it was agreed that he would be placed on a regular roster which could include up to 4 weeks of lates.  As this was a regular roster, the Complainant was pleased to have found some stability on a seemingly normal roster.  It was on his return from holiday in February, the Complainant found that this new roster actually had up to 13 weeks of evening shifts.  He tried to address it with management but to no avail.  This had a severe impact on his family commitments and work-life balance.

c)       March 2021: failure to notify him about starting times.

The Complainant informed his employer that he would need to receive 24 hours’ notice about his roster for changes in any spare duties that needed to be covered.  These duties on the traditional paper roster have no start or finish time and are just noted as S.P.  He got no response to his initial communication.  His next duty which was an S.P. duty was Monday 15th March.  Having not been informed of his start and finish time for this day he came to work at 10am that morning (as this would have been the earliest spare duty he could have turned in for after his 11 hour rest period).  It turned out that he was 30 minutes late for an actual duty he was rostered for without notice or contact.  The Complainant brought this matter to AW who on 18th March 2021 informed the Complainant with a start and finish time on his next S.P. (spare) duty for Friday 19th March.  AW also informed the Complainant that he has to ask the supervisor for any other spare duty times in future as this was normal practice.  The Complainant was frustrated as this was not his responsibility to chase his hours as they should be clearly displayed within the workplace for him to see and to allow him better organise his family life outside of his working hours.

d)      March 2021: failure to pay him Public Holiday entitlements

Having previously agreed with sufficient notice with his employer to take 17th March as paid day off in line with his public holiday entitlements, nonetheless, he was informed via a telephone call on that very day to come to work as they had been expecting him on duty.  He had to forward all his email communication on this matter to his supervisor to prove it.  On 19th March when he returned to work next, he learned that he was marked for 17th March as “absent”.  Subsequently he had to remind the Assistant Operations Manager, AC that she previously agreed with him in writing to take 17th March as a paid day off.  Ultimately, he was paid his day off.

e)      April 2021: lack of proper communication in relation to our member’s roster and failure to pay his properly payable wages

The Complainant had to self-isolate between 20th March and 1st April and was due to be fit to work on or around 2nd April.  After regular communication between the Complainant and AC during his isolation period, AC informed our member of 2 duties he was now rostered for on both the 2nd and 3rd April.  Our member pointed out that in line with the Organisation of Working Time Act that he intended to return to work after his 2 days of rest which now became 2nd and 3rd April and would return to work on 5th April, Easter Monday, (as Sunday 4th April was a rostered rest day) and had also asked for his start and finishing times for his shift.  There was no reply to his email, no communication from his employer, but when he came to work on 5th April, he was informed by his Supervisor, JB, that he was instructed by the Operations team to send him home and for him to contact the Operations team, which he did straight away on 5th April.  The Complainant had no contact from management until the afternoon of 6th April which meant he had now missed this day of work also.  Subsequently, it was explained to him that as he failed “to come to work on 2nd and 3rd April 2021” or “failed” to inform the company of his intention of a return-to-work date, they took it upon themselves to mark him down as absent on both of these occasions.  When our member highlighted his emails again with AC, it was at this point that another Assistant Operations Manager, MH, replied to him.  The Complainant felt extremely frustrated with his employer’s attitude towards him, given the fact that he had actually informed the company in writing of all of the above but there seemed to be lack of proper communication within the company.  A culmination of this incident, along with the previous ones, led our member to feeling so stressed that he went to seek assessment from his doctor.  His GP recommendation was that he be signed of work with work related stress.

f)        April 2021: inappropriate communication from the Respondent:

On 6th April the Complainant was signed off by this GP with work related stress.  His initial sick cert was for up to 21st April.  His employer explained to him that he must inform his line supervisor of his intention to return to work date.  Despite this, on 20th April, MH contacted him instead and asked our member of his return date.  Our member found this inappropriate for a manager, given the nature of his illness, to contact him during his absence.

In addition to the above, the Complainant raised his concerns relating to career progression and the disregarding of all of his applications.  Our member expected these matters would be investigated immediately. 

A few days later, HR Manager CG replied to our member’s grievance email by stating that “I am aware you are out of the business at this time and that I do not expect you to reply to this email, nor will I arrange any meetings for you to attend with me but when you do return if you could let me know and I will arrange”.

There was no further communication from the Respondent as to whether any of these matters were investigated.

On 12th May the Complainant sent his resignation email, in which he clearly outlined his reasons for constructive dismissal.  In his letter our member stated that:

“I feel I cannot return as an employee for the following reasons:

1.       I feel the company failed to follow disciplinary procedures when I was issued with an informal warning via telephone conversation and whilst I was on my break in January 2021. 

2.       The company didn’t comply with my original DAR request on January 11th in line with GDPR.

3.       I feel I was put on a roster under false pretences (approx. 13 weeks of lates instead of 4 as discussed at a meeting with AW and AC).  Several requests to AC, to issue me a copy of the Liffey Roster Lines so I could check the suitability, went unacknowledged.

4.       The company didn’t initially comply with my request for St Patrick’s Day PH 2021 in line with the Organisation of Working Time Act 1997.  I had to message AC a number of times to remind her of our previous written correspondence which she then tried to say meant something totally different.

5.       There was no acknowledgement or rectification in a suitable time frame in accordance with the terms of Payment of Wages Act as I understand it, my loss of earnings claim made through my union representative dated 21st April 2021.  This was for my wrongful sending home on April 5th and subsequent loss of earnings on April 5th and 6th.

6.       I applied for several promotions to try and better myself and create a career for myself and the applications went completely unacknowledged.

This along with the issues mentioned within my grievance, have led me to feel my position within the company has become untenable.  Not to mention the stress this has caused me.  It is for these reasons that I feel I have no other option but to resign”.

After the Complainant resigned, the respondent initiated the grievance, but did not invite our him to any meetings, despite him being ready and willing to attend.  It seems that the Respondent concluded the grievance process on or around 22nd July, but the Complainant never received the outcome.  The Respondent claimed in the email dated 27th August that the outcome email returned to the sender as “undeliverable”.  Furthermore, after the Complainant resigned, he received his personal file under the Data Access Request.

The case

Section 1 of the Unfair Dismissal Act defines constructive dismissal as follows: “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”.

In a number of the Labour Court decisions, it is summarised that the above section describes two situations where a constructive dismissal might be considered.

First one arises where the employer’s conduct amounts to a fundamental break of the contract of employment.  In such situations, the employee can resign and claim to be constructively dismissed.  In such circumstances, an employer would be “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 further performance” as stated in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.  This is described as “contract test”.

Second circumstances which would provide an employee the right to claim for constructive dismissal arises where an employer’s behaviour is so unreasonable as to mean that the employee is left with no other reasonable option but to terminate his or her employment.  This test poses a question whether the employer’s conduct against an employee was so unreasonable one that the employee couldn’t fairly be expected to put up with any longer.  If that is the case, an employee would be justified in leaving.

In Murray v Rockabill Shellfish Ltd [2012] ELR 331, the Employment Appeals Tribunal held that “The Tribunal must consider whether because of the employer’s conduct the claimant was entitled to terminate his contract or it was reasonable for him to do so.  An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract”.  Furthermore, in the case Brady v Newman UD330/1979 the Tribunal stated that “… an employer is entitled to expect his employee to behave in a manner which would preserve his employer’sreasonable trust and confidence in his so also must the employer behave”.

It is the complainant’s case that the accumulation of minor and major breaches of his contract of employment rendered the continuity of his employment relationship untenable.

-        In January 2021 the Complainant was told that controllers had complained about his behaviour, and he was given an informal warning.  However, no copies of such complaints were given to our member, and our member has serious doubts whether any complaints were made against him.  He requested a proper disciplinary process to be invoked, and to be given all relevant documentation related to these complaints etc.  The Respondent failed to act on that.  Notwithstanding the above, the Complainant humbly endured that unfairness and continued to work.

-        After his informal grievance related to a continuously being rostered on late shift, despite the agreement reached with his employer about not doing it, the Complainant was scheduled to do continuous 13 late shifts after his return from holiday.  This was not only contrary to his terms and conditions of employment but to the verbal agreement reached with his managers.  Again, regardless of these breaches he continued to work in a hope that matters will improve.

-        In March 2021, he was marked as “absent” on a particular day (17th March) and was not paid for that day, despite it had been agreed with his employer that this particular day would be a paid day off (he eventually got paid).

-        In the same month, his employer failed to properly notify him about his starting times, contrary to relevant provision of the Organisation of Working Time Act, where an employee is entitled to be informed about his roster no less than 24 hours before the starting time.

-        In April 2021, the Complainant notified his employer about his return to work, but despite his clear communication, he was not provided with work on 5th and 6th April 2021.  The latter disrespectful treatment was the last straw, and our member went on a sick leave.

-        During his sick leave he reflected on his relationship with his employer and decided to encapsulate all of the above in the formal grievance which he lodged on 27th April 2021.

-        Three days later our member received a short communication from his employer in which there was no indication whether the investigation into our member’s grievance had been initiated or not.

At this point, we wish to note that the Complainant received the outcome from his grievance only in November 2021.  He was not invited to any meetings, and it seems that no thorough investigation was conducted by the company, further confirming the Complainant’s proper assessment of his employer continuous and persistent failure to fulfil his contractual obligations.

The Complainant experienced an extreme and persistent failure in the way he had been treated by the management of the Respondent, as outlined in section 4 of this submission and in section 12.  There were a number of incidents of ignoring the Complainant’s communication, which led to him not knowing some of his starting times/finishing times and dates or being punished for not showing to work (i.e., incidents c and e).  The latter incident led to the Complainant becoming so stressed that he had to attend his GP and was subsequently signed off with work related stress.

It is the Complainant’s position that the Respondent’s behaviour was so unreasonable that he completely lost trust and confidence and was left with no other reasonable option but to terminate his employment.  The Complainant will tell that it was reasonable indeed for him to resign from his employment on 12th May 2021 and claim to be constructively dismissed.

In relation to his complaint for non-payment of his wages on 5th and 6th April 2021, we wish to note that our member clearly communicated to his employer about his return to work.  None of his managers informed him that he should not come to work on 5th and 6th April.  However, when our member showed up on 5th April, he was told to return to home as there was no work for him.  He was not put on a lay off.

Introduction

The Complainant was employed as a bus driver from 1st July 2019 until his resignation on 12th May 2021.  His contract was based on a 39-hour working week for which he received approximately €591.60 per week.

Background

The Complainant was absent from work on 24th March 2021 with Covid 19.  A medical certificate was submitted to the operations department, per the procedure, and an acknowledgement email sent from a member of the operations team confirming receipt.

At the time in question, the HSE guidelines advised anyone with Covid 19 symptoms to self-isolate.  The Company’s colleagues who were absent with Covid 19 illness had their salary topped up by the company to receive a full 39-week basic salary to ensure that no colleagues were left at a financial burden during uncertain times.

Once a period of mandatory isolation had ended all colleagues returned to their rota line on the next working day and continued with their rota pattern.  The Complainant was due to return to his rota on 2nd April 2021 following his isolation period, as set out in his medical certificate.

AC, Assistant Operations Manager, confirmed the Complainant’s return to work date with him by email on Thursday 1st April 2021, as well as confirming the rota line week they were in and the rota pattern to follow upon his return from isolation.

The Complainant failed to attend his allocated duty on 2nd April 2021.  Upon contacting him, to find out why he did not attend his duty for that day, he stated that he was of the belief that his rest days during that week moved to after his isolation period and that he was due to commence work on 4th April 2021.  This is not the case, the rota pattern remains in place and when an individual returns to work, in any circumstance, they continue to follow the pattern, i.e., if they return to work on a Wednesday, and their rest days that week were Sunday and then Friday, their next rest day after the Wednesday would be the Friday.  This is the same for all drivers, when returning from any leave, whether that is annual leave, sick leave and so on.

There was an exchange of emails between the Complainant and AC where this was explained and outlined.

As the Complainant did not present himself for duty on the allocated day with no contact – 2nd April 2021, he was marked as absent as per Performance and Conduct Guidelines.

The Complainant did not present himself for duty on 3rd April 2021 which again was a rostered day for him to work, therefore, he was marked as absent for the second day.

Following the above two dates, the Complainant was then on a rest day on the 4th and 5th April 2021 and no work allocated as per his rota pattern.  The Complainant came in to work on 4th April 2021, however, due to it being his rest day and no available duty for him to work, the supervisor on duty informed the Complainant that he was not required to be in work.  The Complainant went home.

It is the Complainant’s case of the above being an alleged industrial relations issue regarding payment of wages regarding the 4th and 5th April 2021, which were classified as a rostered rest day.

Furthermore, the Complainant submitted another medical certificate and whilst off work in this period, he submitted a grievance on 27th April 2021.  The grievance was acknowledged by email and in response, the Complainant was advised that once he returned from his spell of sick leave the Human Resources Department would meet with him and discuss the matters raised in the grievance.

The Complainant never returned from his spell of sick leave and resigned on 12th May 2021.  His resignation reasons were the same as the points he documented in his original grievance received on 27th April 2021.

The Complainant did not afford the Company the opportunity to address his grievance directly with him because he had not returned to the workplace and was then no longer employed.

Following resignation, the company investigated and reviewed each point set out in the grievance.  A response was sent to the Complainant outlining its response to each of the points made in the grievance.  Upon review, the company do not support the reason that the Complainant had no other option but to resign, the Complainant had not afforded the company an opportunity to address the points directly with him and the individuals he had named in the grievance.

When the company reviewed the grievance, it found that all of the points contained within his grievance were matters that were originally raised by the Complainant and that the operations team dealing with these had already spoken to him on each of the issues at different stages and were addressed informally.  When the Complainant submitted his grievance, he also closed off each point in detail of how the operations team addressed each issue he had presented.

The Company Case

The company does not accept an Industrial Relations issue regarding failure to pay 2 days wages to the Complainant on 5th and 6th April 2021 as these were rostered rest days.

The company can confirm that there was work available for the Complainant on 2nd and 3rd April 2021 due to his assigned rota and if he had presented himself available for work on these following dates after his medical certificate had expired and which then would have followed onto his rest day 5th and 6th April 2021.

AC confirmation email advises these days would have been paid and not marked absent, if presented for duty as per rota.  The Complainant has returned from other leave reasons in the time he was employed and followed the rota pattern without problem before this incident.

The Company has followed the Attendance at Work Process when the Complainant failed to report to duty.

“Colleagues who are unable to attend work, must inform their department of their absence with as much notice as possible and with no less than one hour’s notice for starts pre-0900 and no less than 2 hours’ notice for starts post 0900.  Text messaging is not deemed an appropriate way to inform your manager of absence.

Where there are exceptional circumstances preventing these, allowances can be considered.  Colleagues reporting an absence with less than the required notice period outlined above may result in the absence being deemed as an unauthorised absence, and not sickness.  All colleagues, who for whatever reason, anticipate or know that they are going to be late shall telephone their supervisor in advance of arriving for work at the first opportunity so that cover can be arranged immediately if necessary”.

The Company has an agreed grievance policy in place and takes all grievances very seriously.  When the Complainant submitted his grievance while absent from work, he received a response from the Company acknowledging their receipt.

The Company does not accept that the Complainant had no other option but to submit his resignation on 12th May 2021.  The Company reached out to the Complainant and acknowledge his grievance as above.

The Complainant submitted a subsequent doctor’s note up to and including 13th May 2021 and before this doctor note expired, the Complainant submitted his resignation based on the reflected points of his grievance.

Therefore, it is in our view that the company were not given the opportunity to address the Complainant’s matters as per grievance and address each issue as documented and confirm how the operations team had previously dealt with each issue, nor had he given the company the opportunity to put any actions in place regarding a return-to-work plan for the Complainant and a possible mediation plan with himself and his operations manager.

The Company responded to the Complainant’s grievance after his resignation and covered each of the points raised as per his outcome letter.

CONCLUSION

A critical question in this case is the degree to which the Complainant contributed to his own resignation.

In this case, the onus or burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify resigning from his role as a professional bus driver.

The Company believe they were never given the opportunity to address issues with the Complainant as he resigned before this could take place.

It has been made clear in previous decision such as Conway v Ulster Bank Limited it was considered that the Claimant did not act reasonably in resigning and without first having substantially utilised the grievance procedure to attempt to remedy her complaints.

In this case the Complainant must demonstrate that he pursued the grievance through the procedures laid down in the contract of employment before taking the step to resign.

Therefore, all his issues were previously dealt with informally by the operational team and no issues came to light from these previous points on the initial grievance.

In regard to industrial relations claim, the Complainant was due to return to his rota pattern and there was work available for the Complainant for these days.  The Complainant failed to return on the correct day and when he decided to come to work, which were his official rest days, the company did not have any work available to issue to him due to being fully covered on those days and no additional spare capacity required at that time. 

CA – 00045293 – 001 – complaint submitted under s.8 of the Unfair Dismissals Act 1977.

The Complainant contends that he was constructively dismissed from his employment.

Constructive dismissal is defined in Section 1 of the Unfair Dismissals Act, 1977 as; “the termination by the employee of his contract of employment with his employer whether prior notice of 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 given prior notice of the termination to the employer”.

The Irish Courts have set a particularly high standard of proof for an employee to quit his/her employment without notice of termination to his/her employer. The two tests assigned to these are as follows:

The contractual/entitlement test. In applying this test, the Tribunal has determined that an employee is entitled to terminate the contract of employment only where the employer is guilty of conduct which is either a significant breach going to the root of the contract, or which shows that the employer no longer intends to be bound by one or more of the core terms of the contract. 

The reasonableness test. When applying the reasonableness test, the Tribunal has held that an employee can argue that the employer’s conduct was such that it was reasonable for the employee to resign from his or her employment. In terms of the entitlement test, the breach of contract being alleged by the Complainant must be either a significant breach either going to the root of the contract or one which shows the employer no longer intended to be bound by one or more of the essential terms of the contract of employment.

The Complainant in this instance further fails to satisfy the reasonableness test as it was not reasonable for him to terminate his contract of employment, particularly, in circumstances where the Respondent, was not given the opportunity to address any issues that the Complainant may have had in respect to his employment.

In Redmond on Dismissal Law (Third edition, Desmond Ryan BL,) Chapter [19.14] reads as follows:

There is something of a mirror image between ordinary dismissal and ordinary 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 employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster Bank UD 474 / 1981. In Conway the EAT considered the that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’. Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning.

In the instant case the Complainant invoked the grievance procedure at a time when he was absent from work due to work related stress as certified by his GP. The Respondent HR Manager acknowledged his grievance and informed the complainant via email that she would take the matter up when the Complainant was fit enough to return to work. This, I believe was a reasonable approach to take on the part of the HR Manager.

The Complainant then sent in his letter of resignation at a time when he was still medically certified absent from work and in so doing denied the Respondent the opportunity to address any issues with the Complainant.

Having fully considered this matter I conclude for the reasons outlined that the complaint as presented is not well-founded.

Having fully considered this matter I conclude for the reasons outlined that the complaint as presented is not well-founded.

Alleged constructive dismissal.