Complainant

Respondent

Parties

Desmond  O'Farrell

Mc Guire Haulage Limited

Complainant

Respondent

Representatives

Rachel Hartery of SIPTU

Hugh Hegarty of Management Support Services (Ireland) Ltd

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-00045500-001

03/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045500-002

03/08/2021

The issue in contention concerned the alleged Constructive Unfair Dismissal of a Driver by a Haulage Company. A related Minimum Notice complaint was attached.

The Employment began on the 1st January 2006 and ended on the 31st of July 2021.

The rate of pay was stated to be €680 per week for a 40-hour week.

The Complainant gave a lengthy Oral Testimony assisted by Ms Hartery from SIPTU.

 1:1       CA-00045500-001- Unfair Dismissal Act,1977 complaint.

 In essence the case was that the Complainant was primarily and in effect exclusively engaged on a Third Party site, (Danone at Rocklands)  as a “Shunter Driver”.

In his Oral Testimony he outlined that for twenty-three years he had worked without incident. On the night of the 21st of June 2019, he had entered the Third Party site to collect a work mobile phone that he had forgotten. The phone was necessary to get his schedule for the following day. It was necessary to get a “FOB” from another driver to access his Truck – parked at another close by Site (Larkins Cross) and this had required a quick visit to the main Danone site to speak to the other Driver. As he was not a car owner at that time he was being driven by his Partner. Nothing untoward transpired and he had collected his work phone.

The following afternoon , Monday the 24th June, he was informed that the Primary Client, Danone , had withdrawn his Security Clearance for the main Rocklands site. He was not allowed on the site. Effectively he was left without any work. The owner, Mr. McGuire , spoke to the Complainant on the 24th  to assure him he would “sort things out”

Various correspondence followed with SIPTU and the Employer. Annual leave intervened but eventually an Investigation meeting was arranged for the 4th October 2019 with a Report issued on the 13th October. The Investigation Report concluded that employees had never been formally advised not to enter the Rocklands Site after hours and off duty. It was an infrequent occurrence in any event. No Disciplinary action was warranted. Considerable e mail correspondence between the Parties , including Danone at Rocklands, was exhibited. It was clear that the Respondent employer had suggested the site ban to Danone. This was in e mail traffic on the morning of the 24th June . Subsequently  Danone refused to lift the Ban despite the Investigation Report.

The Respondent Employer offered “Other Work” to the Complainant but at Rathcoole, Co. Dublin. This was completely unsuitable on distance grounds for a Wexford resident employee. It was a face saving exercise by the Employer. The Complainant sought a Redundancy Payment but the claim was declined following a full Labour Court Hearing in mid-2021. The Complainant was deemed to be still employed by the Respondent.

At the Oral Hearing considerable discussion took place regarding the Larkins Cross site in Wexford. This was a base for the Respondent operations but , while close by,  was outside the Danone Rocklands site control. The Complainant maintained that he could easily have been given work there. The Respondent replied that drivers at Larkins Cross had to be able to access the Rocklands site.  Being banned from Rocklands effectively meant there was no work at Larkins Cross. The Complainant strongly contested this point. He also pointed to a number of Drivers based at Larkins Cross who had left the Respondent Company and felt that he could have been found work by the Respondent as a result of these vacancies. This was denied by the Respondent – the only work available was the Dublin based job.

Eventually, in complete frustration, the Complainant tendered his resignation on the 31st July 2021. He was cross examined extensively by Mr Hegarty for the Respondent. The Complainant resolutely denied he had done anything wrong . He had worked without incident for twenty three years and no one had ever told him or any of his colleagues that he could not very briefly visit the Truck Yard area out of hours

In supporting arguments Ms. Hartery of SIPTU  pointed to the mail traffic between Danone and McGuires.  It was clear from the tone of the traffic that Danone had had issues with McGuires and Security before. The suggestion of the Ban had come from McGuires. Effectively, the Respondent had “sacrificed” the Complainant, an employee of twenty five years unblemished standing, to curry favour with Danone Managers. He was the “fall guy” in a game between the main client and the Contractor. The Complainant had been left “in limbo” by the Employer. He was never officially terminated but left without any work -essentially the same thing

Legal precedents were referenced , Murray v Cheshire Homes Irl, UDD 2113 , Leonard v Securicor , UD749/2001 and Adj 13086 -A Security Officer v a Security Company.

In summary Ms Hartery argued that the precedents all supported her case that the Respondent employer had been completely Unreasonable in the Constructive Dismissal sense of the word. Offers of work over 250 miles round trip away were farcical and suggestions that the Complainant had not fully exhausted internal procedures  was equally non sensical. He had participated in all internal inquiries and his case was well known to the Employer. The case of Allen v Independent Newspapers UD 641/2000 was quoted in support.

In final summary the Complainant had made an honest and very minor error, completely unaware of any procedures/regulations to the contrary and had been made a “ Fall Guy”  in some type of Game between the Employer and the Final Client.

It was completely disproportionate and totally unfair by any standard..

1:2      CA- 00045500-002- Minimum Notice & Terms of Employment Act, 1973

The Complainant lodged a Minimum Notice Act complaint. He had been Constructively Dismissed and was due his Minimum Notice – eight weeks pay after twenty five years’ service.

The Respondent submitted a detailed Statement and made an Oral Testimony from Mr Hegarty of MSS.

The basic facts of the case were not disputed. The Complainant had breached the Danone at Rocklands security protocols and it was perfectly within their Legal remit to withdraw his site access. Danone is a world leading Baby Food manufacturer and Site Security , especially Bio Security is paramount particularly in an era of Covid. On the night in question not only did the Complainant enter the site but he was accompanied by his Partner, a complete “Unknown” .

Withdrawing his site clearance was a regrettable but perfectly reasonable action. This was an unanswerable situation for the Contractor employer. They had tried without avail to get Danone to lift the ban. All Legal principal and precedents recognised the absolute right of an “End Client” to determine who came on to their premises.

The Contractor, the Employer in this case, had now to find the Complainant work at another site.

Regrettably the working of the adjacent Larkins Cross site was inextricably linked to the Rocklands Danone  site and it was impossible to work on one with no access to the other. 

Other work at the Dublin base was always available until such time as more convenient local Wexford work became available.

Internal Investigation procedures were carried out by a professional Third Party.

The Complainants’ Redundancy claim had gone as far as the Labour Court and had been refused as he was still, at that time, an employee.

By refusing the Dublin work the Complainant was effectively marking time while waiting other more suitable Wexford work. He was always an employee, and his resignation was completely unnecessary. There was absolutely no justification in the SIPTU arguments that the Employer here had acted “Unreasonably” – the site ban issue was not in their hands and they had offered other work ,albeit in Dublin. 

In addition, the Complainant had failed to properly utilise the Internal grievance procedures to pursue his allegations while he was off work. In a Constructive Dismissals context this was a major flaw in his case.

In summary the Respondent employer had acted perfectly reasonably in a situation not of their own making. The Resignation was unwarranted and unstifled.

2:2      CA- 00045500-002- Minimum Notice & Terms of Employment Act, 1973

As the Complainant resigned no Minimum Notice is payable.

3:1       CA-00045500-002 – Unfair Dismissals Act - The Relevant Law.

As much of this case has already been considered by the Labour Court in RPD2115 of July2021 it is important to note from the start that the case now before us is under the Unfair Dismissals Act,1977. Accordingly the relevant Law and Precedent has to focus on that 1977 Act  alone.

3:1:1        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, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

However, Legal precedents notwithstanding, all cases rest finally on their own evidence and specific facts.

These are considered next.

3:2        Consideration of the Oral testimony and submitted Written materials

It is useful , as a help, to follow the three standard Constructive Dismissal “tests” of Breach of Contract, Unreasonable Behaviour and Use of Procedures

3:2:1       Test One : Breach of Employment Contract / The duty of mutual Trust and Confidence.

The Complainant had been an employee, without incident, for some 23 years. Arising from an incident on the night of the 21st June 2019 he was effectively left without work - the offer of transferring to Dublin from Wexford was unacceptable to him. As stated in evidence he was not “laid off”  but left without work in Wexford - the only alternative being work in Dublin.

In the written materials, copies of email etc from the morning of the 23rd of June from Ms Kelly of Danone and Mr Fitzpatrick of the Respondent which were discussed at the hearing it was clear, from an Adjudication point of view that the Site Security Ban had been suggested or at least intimated by the Respondent. The e mails from ManGuard Security referred to “another incident with McGuires over the weekend”. It was clear that Security concerns on the Danone site was an ongoing issue.

The subsequent investigation by MSS, Mr Hegarty , concluded that the Complainant had not wilfully committed any faults and was completely unaware of Danone Security regulations.

It is important to note that the Complainant had by this stage 23 years unblemished service.

It is in this context that the issue of “obligations of mutual trust and confidence” arise . The issue is debated at length in Redmond on Dismissal Law -3rd Edition, Round Hall ,2017 – Chapter Five P 86-100. In lengthy discussions the learned Author Dr. Desmond Ryan considers the question of implied obligations of mutual trust in an employment contract. Suffice to say and following the Irish  Court of Appeal in Flynn v Breccia [2017]IECA 74 the concept is recognised but not necessarily fully developed.

In this case the employee of some 23 years unblemished service is placed in a Limbo employment situation – legally not eligible for Redundancy via Labour Court RPD2115 of July 2021 but still out of work.

A suggestion of work in Dublin, a round trip of some 250 miles per day, was not a realistic proposition. Work at Larkins Cross appeared to be also out of the question.

In the SIPTU submission Ms Hartery suggested seven steps that the Respondent could have taken to alleviate the Complainant’s situation.  None appeared to have been implemented.

From a careful consideration of the evidence the Respondents appeared to rely on the Danone Security Ban which their own Investigation by Mr Hegarty appeared not to warrant any disciplinary action.

It follows that recognising the concept of a mutuality of obligation between the parties as discussed in Redmond the Respondent failed in his contractual duty as discussed in Redmond above  An employee of some 23 years unblemished service cannot be allowed to rest in a Limbo employment situation – not laid off but not working for over two years , it appeared, ad infinitum.

In Labour Court  RPD 2115  of July 2021 the Court, to an outside observer , expressed the view that the Complainant had failed under Section 11 & 12 of the Redundancy Payments ACT,1967. (RPA) He have never been technically “laid off” as required by Section 11 of the RRA

“not withstanding that the Appellant while remaining an employee according to the Respondent, has not been engaged in work for the Respondent since 2019”

The Court continued that it was “Obliged by law”- ie Sections 11 &12 of the RPA Act, 1967  to rule against statutory redundancy for the Complainant.

Even allowing for the legal reservations expressed in the Flynn v Breccia [2017]IECA 74 Appeal Court case the employee was entitled , from a Constructive Dismissal point of view ,to feel that his employment contract and its implied duty of mutual trust had been broken.

Taking the mutuality of obligation argument as developed by Ryan in Redmond above it would create a most unusual situation for an employee to be left “without work” but not technically “laid off”. The basic understanding of Obligation in this context would appear to be a simple one – an employee has work or does not have work. If he/she does not have work then the onus is on the employer to take proactive steps to rectify the situation by finding new work or ending the contract.

To allow a Limbo ( no work but not laid off or made Redundant) situation develop and continue for a number of years is a Breach of Contract on the mutuality basis.

Accordingly, from an Adjudication point of view as regards the Contract test in a Constructive Dismissal case the balance has to be in favour of the Complainant.

3:2:2          Test Two  : Unreasonable Behaviours by either side.

In discussions it was contended by the Respondent that the Complainant was “Unreasonable” in refusing Dublin work. To an objective observer the request to relocate to Dublin from Wexford for daily work seems hard to justify. The Complainant alleged that the Respondent was completely unreasonable in their reaction to the Security issues. To suggest a site Security Ban for an employee of some 23 years’ service appeared not entirely reasonable for the Respondent.

3:2:3       Test Three  : Use of Procedures.

The Respondent alleged in discussions that the Complainant had not fully utilised the full range of Employer procedures. Technically this was correct but has to be balanced by the fact that the Parties were engaged in the WRC both at Adjudication and full Labour Court in 2019/2020/2021. Objectively the argument is in the Respondent favour but not to a major extent.

3:3         Adjudication Conclusion.

Taking the points discussed at 3:2:2 above the Adjudication view is that the mutuality of trust and confidence , a fundamental principle of any Employment contract, was broken by the perpetual Limbo employment situation in which the Complainant found himself.

A case of Constructive Dismissal has been made out.

3:4       CA- 00045500-002- Minimum Notice & Terms of Employment Act, 1973

As Constructive Dismissal has been successfully made out the Notice Complaint has to follow. Eight weeks’ notice is due to the Complainant.

Constructive Dismissal, Breach of Contract, Duty of Mutual Obligation, Limbo employment situation.