Complainant

Respondent

Anonymised Parties

Night Staff Monitor

Monitoring Service

Representatives

  Self

Peter McInnes, McInnes Dunne Murphy LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00046065-007

10/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00046065-008

27/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046065-009

27/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046065-010

27/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046065-011

27/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00046065-012

27/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046065-013

27/09/2021

A complaint was received by the Director General of the Workplace Relations Commission from the Complainant on 10 September 2021 alleging that the Respondent had contravened the provisions of the Unfair Dismissals Act, 1977 in relation to him.  This complaint was submitted on the WRC complaint referral form.  The said complaint was referred to me for investigation and the Respondent was put on notice of the complaint by the WRC.

At the outset of the hearing, the Complainant asserted that he had referred five further complaints to the WRC via email on 27 September 2021 alleging that the Respondent had contravened the provisions of the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997 and the Payment of Wages Act 1991 in relation to him.  The Respondent was not on notice of these complaints. 

I confirmed to the parties that the Complainant’s email had been received by the WRC.  I informed the parties that, as the WRC complaint referral form is not a prescribed form, I would accept that the Complainant’s email of 27 September 2021 was a valid complaint referral to the WRC and that it was my intention to investigate the additional complaints.  Given that the Respondent was not on notice of the additional complaints, I indicated to the parties that I could either investigate the additional complaints alongside the Unfair Dismissal complaint or reschedule them to be heard at a later date.  I briefly adjourned the hearing in order to allow the Respondent to consider its position. 

After a short adjournment, the Respondent confirmed its agreement for all of the Complainant’s complaints to be investigated at the adjudication hearing on the 13 July 2022.  The hearing proceeded on that basis.

The Complainant submits as follows:

The Complainant submits that the Respondent failed in several respects to comply with employment law and, therefore, contributed to the constructive dismissal of the Complainant, namely that:

·       The Respondent failed to ensure the maintenance of a workplace in which the health, safety and dignity of the Complainant were safeguarded.

·       The Respondent repeatedly refused to grant annual leave, to accept the occurrence of illness as factual, and to allow time off in the nature of annual leave to (i) care for a family member, (ii) to move home, and (iii) to attend family events.

·       The Respondent refused to grant annual leave even when it was informed that the leave was required in order to attend to self-care aimed at restoring the Complainant’s physical and mental health.

Annual Leave

The Complainant submits that in August of 2020 he took annual leave and there was a pay discrepancy in one payslip and another payslip that he never received. The Complainant contacted his Supervisor about this and was given some of the money that he had been underpaid for his annual leave. However, the Complainant’s Supervisor said that the Complainant would not be getting the 3 night’s annual leave he had applied for, but would only get two.

The Complainant submits that he had worked an extra shift in the same week as his annual leave, so that a co-worker would be able to work one of the Complainant’s 3 nights off.  The Complainant submits that this was the only possible way for him to get 3 nights annual leave as he was always told that no cover could be found. The Complainant submits that he was not informed that he would only be getting 2 night’s paid annual leave until after the fact, when addressing the pay discrepancy that he had noticed.   The Complainant submitted that he had also requested the missing payslip, which he again requested in his resignation letter but has yet to receive.

The Complainant submits that, at that point it was starting to feel that even when he did get annual leave, he was punished for requesting it, because he was not paid at all for that period of annual leave until he calculated the missing hours in his payslip and realised that the missing hours where for the 3 nights of annual leave that he had taken.  The Complainant submits that even when he addressed this with his Supervisor, he still did not get payment for the full 3 nights annual leave.

The Complainant submits that he contacted his Supervisor in January 2021 to request annual leave due to the deterioration of his mental health as a result of conditions at work triggering his past traumas. The Complainant submits that he made it clear to his Supervisor that he needed time off so he could address these issues, for example by being able to attend counselling during the daytime. Although his Supervisor was verbally supportive, he told the Complainant that no cover could be arranged and so the leave was refused yet again.

There was one instance when the Complainant applied for leave without the usual two weeks’ notice, when a family emergency occurred unexpectedly.  When the Complainant called to say he needed to take leave, his Supervisor told him he’d get back to him later. When his Supervisor did get back to him, he told the Complainant that only 4 hours’ cover could be found, and put pressure on him to come in for 12 hours of the shift, starting from 2am. The Complainant explained repeatedly that he had no one else to cover for him at home.  The Complainant offered to call his co-worker to ask him to cover for him.  The Complainant’s Supervisor cut him off saying that he would make the call. When the Supervisor called him back, he had volunteered the Complainant for a swap without his consent that resulted in him having to work a 72-hour week between the evening of 14 March 2021 to the morning of 21 March 2021 without any choice in the matter. At no point during this exchange did the Supervisor offer to allow the Complainant to take force majeure leave, which he now believes he should have been entitled to.

The Complainant submits that the repeated failure of the Respondent to grant annual leave had a deleterious effect on his health. This was compounded by failure in the duty of care when the Complainant was ill.

The Complainant submits that, in a telephone conversation with the Complainant’s wife, the remark “he’s always looking for time off” was made by the Complainant’s Supervisor.  The Complainant submits that this was derogatory and infringed on the Complainant’s right to dignity at work. While the Complainant’s wife was on the call due to the Complainant being too ill to make the call and under the effect of medication, it is submitted that making that remark to a third party was inappropriate and defamatory.  The Complainant submits that repeated applications for annual leave were made necessary by the refusal of the Respondent to grant such leave in a reasonable fashion.

The Complainant submits that one of the things that made it difficult for him to press his case in relation to annual leave was the fact that he never received a written statement of the terms of his employment. While he was given verbal information at the start of the employment with regard to an allowance of 30 days’ leave per year, providing he gave two week’s notice with the request for leave, he never managed to take even 20 days in a year and had no written contract to fall back on.

Health and Safety

The Complainant submits that health and safety concerns were raised by him pursuant to Section 23 of the Safety, Health and Welfare at Work Act 2005 in relation to breathing difficulties in the workplace possibly arising from the use and improper storage of cleaning products by staff employed by the contracting entity during daytime hours.  The Complainant submits that these concerns were not taken seriously but rather were treated as an excuse for requesting leave. The Complainant submits that ultimately the situation was resolved by transferring the Complainant to a different site.

The Complainant submits that he collapsed at work in 2020 and called the Director (his Supervisor’s father), as his Supervisor was unavailable that night. The following day his Supervisor called him and was hostile and confrontational, demanding an explanation as to what was going on and stating that only a doctor could advise as to whether he was fit to work or not and demanding to know when he would see his doctor. The Complainant ended up on sick leave, as ordered by his doctor, and the ultimate solution offered by his Supervisor was to move him to another site. It was the suspicion of his doctor that there was an environmental cause to his physical condition, as his symptoms were worsening when onsite in the project where he was stationed.

The Complainant submits that, although the issue was resolved, it was only resolved after a period when he was subjected to a level of hostility from his Supervisor that was not appropriate, as witnessed by his mother and spouse who were present in the house at the time of the call, on which his Supervisor was speaking loudly enough to be heard clearly by his spouse who was with him, and his mother who was downstairs.

The Complainant submits that no Safety Statement as required under section 20 of the Safety, Health and Welfare at Work Act 2005 was ever brought to his attention during his employment with the Respondent.  Furthermore, the Complainant submits that he was never provided with a policy in relation to the relevant protocols which applied in circumstances where he was a Lone Worker.

Covid-19

The Complainant submits that something occurred in February 2021 that made him deeply uncomfortable. The Complainant’s wife was a close contact of a suspected case of Covid-19 due to her work, and given the guidelines issued by the health authorities he called to inform his Supervisor. When he couldn’t get through to his Supervisor, the Complainant called the Director, as he is the only other person in the company with authority whose phone number he had. The Director insisted that the Complainant attend work regardless, which he reluctantly did. This left him feeling isolated as he could not, out of loyalty to the company, discuss the issue with anyone, even though he may have been endangering them by his silence. The Complainant submits that he has felt extreme guilt since then at the thought that he could have been spreading Covid-19, potentially risking the health of everyone he came in contact with at work because of his compliance with the Director’s instructions.

Illness in March 2021

Later in March 2021 the Complainant was unwell and texted his Supervisor to say he was going to see his doctor. His Supervisor’s response was that he was showing a lack of respect by giving too little notice. Unfortunately, as the Complainant is a night worker, it was only when he awoke at 5pm that he discovered he was unwell. After he saw a doctor at approximately 7pm that evening, the Complainant reported that he had been certified unfit for work, to which his Supervisor replied “you must be joking me”. His Supervisor went on to say that this was not acceptable, doctor’s note or not, and criticised the lateness of the information (although it was as soon as the Complainant could give it), and criticising him as an employee for not showing the responsibility and respect that he should. The Complainant submits that he was unwell and that this was tantamount to bullying. This led to him being out of work for an even longer time, due to exacerbating the anxiety he was already experiencing.

When the Complainant’s wife phoned his Supervisor on his behalf to inform him of the Complainant’s ongoing issues, she was subjected to condescension, sarcasm, hostility and remarks about him which the Complainant submits should only have been exchanged between the Complainant and his Supervisor. The Complainant submits that his Supervisor also said to his wife that the Complainant would have to take a month’s unpaid leave in addition to the sick leave, without first consulting the Complainant about this. The Complainant texted his Supervisor the next day seeking clarification and was told that it was a month’s career break to look after his well-being. The Complainant was clear that he had not applied for a career break.  The Complainant submits that this further aggravated his condition as it gave the impression of impending discipline as he worked autonomously with no regular contact with his Supervisor under normal circumstances.  The Complainant submits that he ultimately never met with his Supervisor after his return from sick leave.

Conclusion

The Complainant’s sense of self-respect and self-worth suffered greatly because he was working in a hostile environment where his dignity as an employee was not being respected, his health and wellbeing were ignored, and the basic legal provisions of employment were not being met. All of this ultimately led to severe mental health issues, which resulted in him having to start taking prescribed anti-anxiety medication and antidepressants. The confrontational nature of exchanges with his Supervisor made it impossible for him to find a resolution to these issues, as the only other person in the company he could turn to was the Director, the father of his Supervisor who had previously made him attend work despite a potential risk to the health to himself and others in his workplace as outlined above.

The Complainant submits that he was never made aware if there was a human relations department in the Respondent organisation and he had no contact details for any other person to talk to about any of these issues. The Complainant submits that the only people he could discuss his mistreatment with were the perpetrators.

As a result of these behaviours, he felt he had no other choice but to resign for the sake of his physical, emotional, and mental wellbeing as he could no longer work under such conditions with no available resources to address or resolve the aforementioned issues.

The Complainant submits that the failure of the Respondent to provide either a written statement of his terms and conditions or a contract left the Complainant with no clarity as to whether his employer was acting correctly at any time and he did not have anything to refer to when doubt arose as to his rights and duties.

The Complainant submits that requests for leave were repeatedly refused on the grounds that there was insufficient cover.  The Complainant submits that this insufficiency of cover was not addressed by the Respondent through recruitment during the entirety of the employment of the Complainant. It is submitted that the pattern of refusal of annual leave, in a relationship of unequal power, was an abuse of power. The effect on the Complainant was that his health suffered as is evidenced by sick absences, in particular, during the latter period of his employment with the Respondent.  The Complainant submits that he suffered from fatigue, physical deterioration and mental anguish as a result of sustained periods without sufficient time to recuperate through annual leave.  The Complainant submits that his physical and mental condition at the end of his employment with the Respondent was such that for four months afterwards he was unable to apply for support payments to which he was entitled.  Furthermore, the effect on the well-being of the Complainant was sufficiently severe as to cause him to take medication for anxiety and depression.

The Complainant submits that the cumulative effect of the breaches by the Respondent was such that the Complainant had no option but to leave his employment with the Respondent. It is submitted that the Complainant was constructively dismissed as a result of the action, inaction and/or omission of the Respondent.

Direct evidence of the Complainant

The Complainant said that he had no option but to resign from his employment with the Respondent for the following reasons:

·       He did not receive one of the payslips he should have received in August 2020.

·       During his employment with the Respondent, one of his payslips was incorrect.

·       He had two issues in relation to annual leave during his employment with the Respondent.

·       He was unhappy about the way in which his Supervisor spoke to his wife.

·       He was unhappy about how his Supervisor divulged important information about his employment without speaking to him first.

The Complainant indicated that he was prepared to accept that until March 2020, he had a good relationship with the Respondent and that he felt welcomed and respected.

The Complainant submitted that the first time he saw the Respondent’s grievance procedure was on 9 July 2022, after he had resigned from his position with the Respondent. 

The Complainant confirmed that some issues which he had raised were resolved.  The Complainant agreed that the issue he had with the safety of his workplace in 2020 was resolved by his transfer to a different location.  The Complainant stated that this was not the solution he was looking for but that he accepted the move.  The Complainant confirmed that at time he resigned, there was only an outstanding dispute about his payment for one shift.

In relation to his disquiet about the Director’s instruction to him attend work when his wife was a close contact of a suspected Covid case, the Complainant indicated that he completely accepted that he was under a misapprehension and that the Director’s instruction was in line with the guidelines which were in operation at that time.  The Complainant submitted that he only realised this recently.

The Complainant agreed with the Respondent’s representative that texts between him and his Supervisor dated 16 May 2020 were evidence of his Supervisor being supportive towards him.  The Complainant also agreed with the Respondent’s representative that texts between him and his Supervisor dated 22 August 2020 in relation to annual leave were indicative of his Supervisor being very supportive towards him.  The Complainant further agreed with the Respondent’s representative that a text from his Supervisor dated 27 January 2021 was very supportive. 

The Complainant said that he started to become afraid to raise issues because whenever he phoned his Supervisor, he would get screamed at down the phone. 

Mitigation of Loss

The Complainant said that when he finished work on 10 May 2021, he was not well enough to start looking for another job.  He started looking for jobs in September 2021 and eventually commenced a new job on 8 June 2022.

The Respondent submits as follows:

The Respondent is a small family owned and run business which offers an out of hours monitoring service of housing projects within the supported accommodation and homeless service sectors.

At all relevant times, the Complainant was employed by the Respondent as a member of Reception, Monitoring Staff at one of the facilities serviced by the Respondent. The Complainant commenced employment with the Respondent on 22 January 2019. The Complainant’s employment terminated on 10 May 2021 by reason of resignation. 

The Respondent disputes the claim made by the Complainant that he had to leave his employment due to the conduct of the Respondent. 

The Complainant asserts that he encountered “problems since the start of [his] employment which proved impossible for [him] to have remedied by [his] Supervisor as they had formed a repeated pattern of mistreatment”. The Respondent rejects this assertion.

The Respondent submits that it uses WhatsApp as its primary method of communication with its employees, many of whom work alone during unsocial hours.   At the hearing, the Respondent opened all of the WhatsApp and text messages exchanged between the Complainant and his Supervisor during the Complainant’s employment with the Respondent. The Respondent submits that, at no point in these exchanges, other than in March 2021, of which more below, do the messages display anything other than a supportive and friendly working relationship. At several points in the exchanges, the Complainant praises, and thanks his Supervisor for his support.   The Respondent submits that there is no disagreement, let alone complaint, evidenced in the messages. These messages display a collegiate, flexible, and supportive working relationship. It is submitted that these messages serve to undermine the Complainant’s assertions. 

The Respondent submits that it is wrong for the Complainant to assert that no safety measures were brought to his attention. Safety issues are addressed in the contract of employment and in policies and protocols issued by the organisations to which the Respondent provides services. The Complainant, like all members of staff, was made aware of those policies and protocols.

The Complainant asserts in his submission to the WRC, that he had to deal with difficult situations including threatened suicide and performing first aid. The Respondent submits that the Complainant’s assertion is not correct. The Respondent is required to follow protocols issued by the organisations to whom it provides services in the case of potential incidents. It was not the role of the Complainant, or any member of the Respondent’s staff, to intervene in any incident. Their role is to log incidents and follow the escalation protocols. The Respondent submits that the WhatsApp communications between the parties which were opened at the hearing do not reveal any pattern of concerns expressed on the part of the Complainant in this regard. 

The Complainant asserts in his WRC Complaint form that he collapsed while at work in his first work location. The Respondent submits that no report of this event was ever made to the Respondent. The Complainant did report that he felt dizzy in the facility’s car park but reported that he was fine when he returned to the office.

The Complainant asserts that his health deteriorated while in his first work location and suggests that there may have been an “environmental cause” for the deterioration in his health. That matter was investigated and resolved. It turned out that the Complainant suffers from asthma which was exacerbated by bleach-based cleaning products on site. Those cleaning products were removed and replaced. The Respondent submits that, contrary to the assertion made by the Complainant, his concerns were taken seriously. The Complainant was offered the opportunity to move site, which he accepted. The Respondent denies that his Supervisor was hostile to the Complainant at this, or any other, time.

The Complainant was afforded time off when his wife was unwell by means of the Respondent arranging cover at short notice. 

The Complainant was, like all employees, offered access to counselling services by the Respondent. The Complainant refers to an exchange in January 2021 when he says he sought time off due to a deterioration in his mental health. The Complainant declined the offer and said he would see his own counsellor on his day off. 

As regards the point raised by the Complainant about Covid-19 in February 2021, the Respondent submits that it followed the relevant Government guidelines at the time. The Complainant’s wife was a close contact of a suspected case of Covid-19. Government guidance at the time did not require close contacts of positive cases to self-isolate. The Complainant was not a close contact of a suspected case and was permitted to work. The Respondent submits that the Complainant’s fears were without foundation as he could easily have ascertained. 

The Respondent submits that the Complainant seeks to make much of an incident on 23 March 2021.  The Complainant asserts that he only woke at 5pm on 23 March 2021. That would not be unusual for the Complainant if he had been working the previous night. He had not. The Respondent has submitted a copy of its roster for the relevant period from which, the Respondent submits, it can be seen that the Complainant was off for the previous two days.   The Respondent submits that fact, and evidence adduced at the hearing, strongly suggest that the Complainant’s account of what occurred on this date is incorrect. It is clear from the exchange of messages that the Respondent offered the Complainant a 4 week break to rest and recover. The Complainant was absent for that period on sick leave. 

The Respondent submits that it is clear from an exchange of messages in April 2021 that the Complainant felt able to return to work and was keen to return.  The Respondent submits that there is no suggestion in those exchanges that, only 2 days after he returned to work, the Complainant would resign, let alone resign on the terms he did. The Complainant worked his notice period in full. 

The Complainant’s Supervisor denies that he spoke inappropriately to the Complainant’s wife when she contacted him on the Complainant’s behalf during his absence due to illness in March 2021.  

The Complainant asserts that the Respondent did not have any any effective process for dealing with complaints by employees. The Complainant’s point that the only person to whom he could complain is the Director (the Supervisor’s father and founder of the Respondent company) is noted but it is a fact that the Complainant did not seek to make any complaint to the Director and in fact, as the messages adduced in evidence demonstrate, did not raise any complaints with his Supervisor of any significance during his employment. The Respondent submits that any concerns raised, such as the deterioration in his health in his first work location or pay discrepancies, were addressed, and resolved at the time to the Complainant’s apparent satisfaction. 

Legal Submissions

It is well established in constructive dismissal cases that the Complainant bears the burden of proof as to dismissal. The Complainant must persuade the Adjudication Officer that resignation was not voluntary. It is submitted by the Respondent that the Complainant has failed to establish this burden of proof.

It is further a well-established principle of any constructive dismissal claim that, for reasons of fairness and natural justice, an employee is required to exhaust the employer’s relevant procedures in an effort to resolve any such issues and/or concerns.

It is submitted by the Respondent that, prior to his resignation on 26 April 2021, the Complainant failed to use the internal grievance procedure in the contract of employment in order to address any concerns/ issues he allegedly had. The Complainant never raised a grievance or brought a complaint concerning the concerns he now claims were so serious that they damaged his health and caused him to resign. 

It is submitted by the Respondent that there is no evidence whatsoever that it either breached a significant term, express or implied, going to the root of the Complainant’s contract of employment, or that it conducted itself so unreasonably that the Complainant could be justified in resigning. The Respondent submits that the messages adduced in evidence demonstrate a collegiate, flexible, and supportive working relationship. The Respondent submits that, while some of the exchanges might be regarded as coarse or informal, they must be viewed against the backdrop of the nature of the Respondent’s business and, in any event, they are exchanges in which the Complainant actively participated. 

Consequently, it is submitted that the Complainant has failed to establish that he was constructively dismissed, particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” as provided for at section 6 (7) of the Unfair Dismissals Act. 

With regard to the issue of loss, the Complainant has confirmed, in reply to a request for details of his alleged loss and his attempts to mitigate same, that he was unable to seek alternative employment for a “period of months” due to ill-health allegedly caused by his employment by the Respondent. It is submitted that, for the period during which the Complainant was unfit to look for alternative work, he is not entitled to be compensated under the Unfair Dismissals Act due to his inability to mitigate his loss. 

The Respondent submits that the Complainant has produced inadequate evidence of his attempts to mitigate his loss.  The Complainant suggests that evidence of his attempts to obtain alternative employment he claims was submitted to the Department of Social Protection should be accepted by the WRC. It is submitted that this is not satisfactory. The Complainant is under an obligation to produce evidence of his attempts to mitigate his loss. The Respondent submits that he has failed to do so. 

The Respondent cites the following precedents in support of its case: Western Excavating (ECC) Ltd v Sharp; A General Operative v A Religious Society ADJ-00002814; Conway v Ulster Bank Ltd UD 474/1981; Desmond Ryan BL in his book, “Redmond on Dismissal Law,” Third Edition; Power v University of Limited UD 654/1991; Morans v Electricity Supply Board UD 347/1997; Mooney v CPC Foods (Ireland) Ltd UD 383/1987; Gregory v Cannon Hygienic Products (Ireland) Ltd UD 283/1992; and, Higgins v Donnelly Mirrors Ltd UD 104/1979;

Direct evidence of the Complainant’s Supervisor

The Supervisor stated that the Complainant was probably one of the best employees the Respondent had ever had.

The Supervisor confirmed that most of his communication with the Complainant was via text message.  A lot of the text messages were about swapping shifts.  The Supervisor maintained that there was never any problem about getting time off.  It was his recollection that the Complainant was only refused leave on one occasion.

The Supervisor referred to an exchange of messages between himself and the Complainant on 27 January 2021 concerning a workplace incident.  In his message, the Complainant thanked his supervisor for support: “Just wanted to text to say thanks for the help and support on the phone there … “.  His supervisor responded: “No problems [Complainant].  If there is anything you need from us or anything we can assist you with please don’t hesitate to ring me.  You’re doing an amazing job [Complainant] but leave the job in the job it’s always the best thing.  Nor ur concern when ye walk out that door as you said.  And when there it’s follow protocol which your doing … “

The Supervisor said that the Complainant never came back with another issue. 

The Supervisor said that on 23 March 2021, the Complainant messaged him at 16.58 to give him the heads that he was going to his doctor as he was feeling unwell.   The Supervisor expressed his annoyance in a return message as it left him with very little time to arrange cover as the Complainant was due to start work at 8pm that evening and he himself was working until 2am so could not cover the beginning of the shift.  The Complainant messaged again at 19.28 to say that he had been certified as unfit for work and would not be able to do his shift that night.

The Supervisor said that the Complainant being sick was not an issue.  He had an issue with the late notice as it was too late to get someone to cover.  The Supervisor confirmed that the Complainant did not phone before he messaged him.

The Supervisor confirmed that had not known that the Complainant had sought a swap from one of his colleagues earlier that day to cover his shift.  He only found out about it when he phoned the colleague.

The Supervisor said that the Complainant never mentioned to him that he wasn’t happy.  He said that if the Complainant had any issue with him, that he could have raised it with the Director, the Supervisor’s father.

The Supervisor said that the Complainant’s spouse was his only means of contact with the Complainant after 23 March 2021.  The Supervisor strongly refuted that he spoke to her in an inappropriate manner as he was a room with his two children at the time and he would not have been mindful of their presence.  The Supervisor said that he doesn’t accept that he was abusive or dismissive.

The Supervisor said that he never used the term ‘mandated’ in relation to his suggestion that the Complainant take some time off so that he could get better. 

The Supervisor said that he was shocked when he received the Complainant’s resignation and that he wasn’t expecting it.  He said that he had been unable to communicate with the Complainant during that time as every time he phoned him, he went straight to voicemail.

Direct evidence of the Director

The Director confirmed that he founded the Respondent business which is now run by his son, the Complainant’s supervisor. The Director confirmed that he interviewed the Complainant for his job and at the end of the interview, the Complainant took the contract as he was leaving.

The Director confirmed that the Complainant contacted him when his wife was a close contact of a suspected case of Covid to ask if he needed to isolate.   In line with the guideline which were in operation at that time, the Director told the Complainant that he did not need to isolate.

Direct evidence of the Complainant’s former colleague

The Complainant’s former colleague confirmed that he got a phone call from the Complainant between 2pm and 4pm on 23 March 2021 asking if he would swap shifts.  The former colleague informed the Complainant that he was not in a position to swap shifts on that date as he had been working the previous two nights.

As the Complainant is claiming constructive dismissal, the burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Unfair Dismissals Act which provides that:

““dismissal”, in relation to an employee, means—

(b) 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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, 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 Supreme Court in Berber -v- Dunnes Stores [2009] ELR 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.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment. 

I do not doubt that the Complainant felt that he had been harshly treated by the Respondent and that this had led to his resignation.  However, it is generally accepted that employees who claim that they have been constructively dismissed must show that they have substantially utilised the grievance procedure before resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare.

The requirement on a Complainant to exhaust the Respondent’s grievance procedure has been emphasised repeatedly by the Employment Appeals Tribunal (EAT) and the Labour Court.  The most relevant case in this regard is Conway v Ulster Bank Ltd (UD 474/1981) where the EAT found that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated:

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “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 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 Ltd UD474/1981.  In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’” 

In the herein case the Complainant has partially ascribed his failure to exhaust the internal procedures to fact that the Respondent did not have an employee handbook in place.  The Complainant disputes that he received a contract from the Respondent and, therefore, was not sure how to raise a grievance.

From his evidence at the hearing, it is clear that the Complainant had previously contacted the Director concerning an issue in relation to Covid-19.  The Complainant said that he no longer felt able to trust the Director due to the way that the Director had responded when the Complainant raised an issue about Covid-19. However, as the Complainant conceded at the hearing, the Director was acting in accordance with the guidelines which were in place at the time when he told the Complainant that he should attend work as he was only a close contact of a close contact of a suspected case of Covid-19.  I am of the view that the Complainant’s mistrust of the Director was misplaced and that he should have contact him before resigning if he did not feel comfortable about discussing his issues with his Supervisor.

I will now turn to the reasonableness of the behaviour of the Respondent in its dealings with the Complainant to see they were so unreasonable as to leave the Complainant with no option but to resign.

The Complainant detailed the issues he had with bleach-based cleaning products at his first work location.  From the evidence that was adduced at the hearing, I am of the view that the Respondent dealt reasonably with the Complainant’s issues by first trying to establish a cause for his difficulties and then, by moving him to an alternative location.  Although the Complainant said at the hearing that this was not his preferred solution, he did not adduce any evidence to show that he had raised a grievance with the Respondent at the time.  I am of the view that the Complainant’s failure to raise a grievance, coupled with the length of time between the difficulties he experienced in his first place of work and his resignation, does not lead me to believe that there was a causal connection between the two events.

In relation to the Complainant’s issues about how the Respondent had spoken to his spouse about work matters, without first discussing them with the Complainant, I note that it was the Complainant who had nominated his spouse to speak on his behalf.  I am of the view, therefore, that it was reasonable for the Respondent to discuss the options available to the Complainant with the Complainant’s spouse.

With regard to the incident on 23 March 2021 when the Complainant notified his Supervisor that he was unable to work his shift that night and the Respondent was annoyed at the late notice, I am of the view that the Complainant should have contacted his Supervisor earlier in the day.  After all, as per the evidence of his former colleague, the Complainant contacted his former colleague between 2pm and 4pm looking for his former colleague to sway shifts.  The Complainant said that he was unable to contact his Supervisor because he did not get out of bed until 5pm because he was working the previous night.  However, the March roster submitted by the Respondent, which was not disputed by the Complainant, shows that the Complainant was not working on 21 or 22 March 2021.

Having considered the submissions of both parties and all the evidence adduced at the adjudication hearing, I find that the Complainant did not exhaust the internal grievance procedure and that he did not show that the conduct of the Respondent was so unreasonable as to leave him with no option but to resign.  Accordingly, I declare that the complaint of alleged unfair dismissal is not well founded.

Having regard to all of the circumstances of the case, I declare that the herein complaint is not well founded.

The Complainant submits as follows:

Section 3 of the Terms of Employment (Information) Act 1994 as amended provides that an employer shall provide to the employee statements in writing within 5 days and within 2 months of the commencement of employment, setting out the terms and conditions of the employment.

The Complainant was given a verbal statement of the conditions of employment at his recruitment interview but following the commencement of the employment received no written statement or contract setting out the terms and conditions of the employment.

The Respondent submits as follows:

The Complainant asserts he was not provided with a statement of his terms and conditions of employment in writing. This is disputed by the Respondent who asserts that the Complainant was furnished with a copy of this contract, bearing his name, for review and return at the conclusion of his interview in the Respondent’s office. The Complainant failed to return the contract. The Respondent submits, therefore, is therefore not guilty of any breach of the Terms of Employment (Information) Acts 1994-2015.

At the hearing, the Respondent confirmed that the Complainant was never issued with a contract which was signed by the Respondent.

This complaint has been referred under section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of section 3 of the Act.

Section 3 (1) of the Terms of Employment (Information) Act, 1994 provides:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment …”

Section 3 (4) of the Act states that: “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”.

At the hearing, the Respondent conceded that Complainant was not issued with a statement of his terms and conditions which was signed by the Respondent.

I find that the Respondent has contravened section 3 of the Act and that the complaint is well founded.

In accordance with my powers under section 7 of the Terms of Employment (Information) Act 1994, I declare that the Respondent has contravened section 3 of the Act and that the complaint is well founded. I order the Respondent to pay to the Complainant compensation in the amount of €2,300 being the equivalent of four weeks’ pay in respect of the contravention, the maximum award permitted under the Act.

The Complainant submits as follows:

The Complainant submits that annual leave granted to the Complainant fell short of the statutory minimum in each year of the employment.  With the exception of a payslip not provided to the Complainant, the annual leave granted has been calculated by reference to payslips received from the Respondent. According to this source, and the recall of the Complainant, for the full year 2019 leave granted was 11.5 days; for 2020 it was 11 days, and for the 4 and a half months of 2021 was 3 days.

The Complainant submits that, based on his payslips, he only received a total of 11 days of annual leave in 2019 and 10 in 2020.   The Complainant submits that this figure may be off by one or two days, due to him missing a payslip, and not being able to calculate because of that.

The Complainant submits that, during his employment with the Respondent, which lasted 2 years and 4 months, only one unbroken period of 2 weeks' annual leave was granted. This was the Complainant’s honeymoon, and during this time he was called by phone to ask whether he would attend work to cover a shift. No other unbroken period of 2 weeks was granted.

At the start of the employment, the Complainant was told verbally that annual leave would be 30 days per year subject to a two week notice period, but that any annual leave not taken would be forfeit. This forfeit was a continuing feature of the employment despite the statutory minimum not being granted.

The Complainant submits that the pattern of refusal to grant annual leave was such that the Complainant was unable to take care of his wife when she was ill, and was forced to move home between two night shifts as leave was refused.  Family events arising from time to time could not be attended due to the refusal of leave.

The Complainant further submits that the pattern of refusal to grant annual leave was such that the Complainant had insufficient time to rest from what was frequently a stressful occupation (e.g. the necessity to deal with threatened suicide while neither trained not qualified to do so; the necessity to deal repeatedly with confrontational residents who were breaching the rules of their residency; having to give emergency first aid without any occupational training whatsoever), resulting ultimately in the deterioration of his physical and mental health.

Payment on cessation of his employment

The Complainant submits that no recompense was made by the Respondent in respect of annual leave owed to the Complainant at the date of cessation of employment.

The Respondent submits as follows:

The Complainant claims that he was told at interview that he would be entitled to 30 days leave per annum. The Respondent submits that this is incorrect. The contract of employment furnished to the Complainant expressly states that holiday entitlements would be calculated in accordance with the Organisation of Working Time Act 1997.

The Respondent submits that the Complainant’s annual holiday entitlements were honoured. He was entitled to 160 hours annual leave per annum plus public holidays based on his working hours, which were a pattern of 7 shifts in every 14 days. Shifts were generally 12 hours in duration although they would occasionally extend to 16 hours. The Complainant worked a “2 days on 2 days off” shift pattern. The Complainant was paid double time for any public holidays worked. The Supervisor confirmed that the Respondent did not permit a carryover of annual leave and that payment was made for annual leave which was outstanding at the end of the leave year.

At the hearing, the Supervisor contended that the Complainant was informed of this annual leave entitlement when he was being interviewed for his job.  The Supervisor said that the Complainant never raised an issue about annual leave while he was working with the Respondent.

The Supervisor said that the Complainant was paid 40 hours leave in the second pay period in January and, therefore, was not entitled to payment for leave on cessation of his employment.

The Complainant’s referral in respect of this complaint was received by the WRC on 27 September 2021.  In accordance with Section 41 (6) of the Workplace Relations Act 2018, the period that can be taken into account (the cognisable period) in relation to this complaint is six months from the date the complaint was submitted to the WRC which gives a cognisable period from 28 March 2021 until 27 September 2021.  However, as the Complainant’s employment with the Respondent ended on 10 May 2021, the appropriate cognisable period for the herein complaint is the period from 28 March 2021 until 10 May 2021.  I do not have the jurisdiction to investigate any complaints which fall outside the cognisable period.

Relevant Legislation

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)    one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)    8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 23 of the Organisation of Working Time Act, 1997 provides for the payment of compensation for any outstanding leave on the cessation of employment as follows.

23.—(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

It is clear from the payslips submitted by the Complainant, that he was paid for 40 hours annual leave in the second pay period in January 2021.  The Complainant’s annual leave entitlement was 4 weeks (160 hours) which equates to 40 hours for each four month period.  I find, therefore, that this payment covers the period from 1 January 2021 to 30 April 2021.  However, the Complainant did not stop working for the Respondent until 10 May 2021 a period which equates to a third of a month or 1/36 of his annual entitlement of four weeks (160 hours) which is 4.5 hours.  As the Complainant’s hourly rate during his employment with the Respondent was €11.50 the monetary value of the outstanding leave is €51.75.

I find that this complaint is well founded.  I direct the Respondent to pay the Complainant €51.75  for the economic loss in respect of the outstanding annual leave. I also direct the Respondent to pay the Complainant an additional €100 in compensation for the breach of the Complainant’s rights under the Act. 

The Complainant submits that he did not receive breaks. He was unable to identify specific dates on which the alleged breaches occurred.

The Respondent submitted that the Complainant received all his breaks.

The Complainant’s referral in respect of this complaint was received by the WRC on 27 September 2021.  In accordance with Section 41 (6) of the Workplace Relations Act 2018, the period that can be taken into account (the cognisable period) in relation to this complaint is six months from the date the complaint was submitted to the WRC which gives a cognisable period from 28 March 2021 until 27 September 2021.  However, as the Complainant’s employment with the Respondent ended on 10 May 2021, the appropriate cognisable period for the herein complaint is the period from 28 March 2021 until 10 May 2021.  I do not have the jurisdiction to investigate any complaints which fall outside the cognisable period.

As the Complainant was unable to identify any breaches in relation to his breaks during the cognisable period, I find that this complaint is not well founded.

I find that this complaint is not well founded.

The Complainant submits that he only received a rest period of 8 hours between his shift on 24 April 2021 and his shift on 25 April 2021 where he should have received at least 11 hours.

The Respondent did not dispute the Complainant’s submission.

The Complainant’s referral in respect of this complaint was received by the WRC on 27 September 2021.  In accordance with Section 41 (6) of the Workplace Relations Act 2018, the period that can be taken into account (the cognisable period) in relation to this complaint is six months from the date the complaint was submitted to the WRC which gives a cognisable period from 28 March 2021 until 27 September 2021.  However, as the Complainant’s employment with the Respondent ended on 10 May 2021, the appropriate cognisable period for the herein complaint is the period from 28 March 2021 until 10 May 2021.  I do not have the jurisdiction to investigate any complaints which fall outside the cognisable period.

Section 11 of the Organisation of Working Time Act 1997, provides that:

“An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.”

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded.

I find that this complaint is well founded and I direct the Respondent to pay the Complainant redress of €300.

The Complainant did not identify any breaches of the act by the Respondent in relation to him during the cognisable period.

Any pay discrepancies noticed by the Complainant were remedied immediately. The Complainant claims that he did not receive all payslips. That is correct but the Complainant omits to confirm that, when he raised the point with the Respondent, the missing payslips (1 at the relevant time and 2 over the entire course of his employment) were provided with an apology for the oversight.

The Complainant’s referral in respect of this complaint was received by the WRC on 27 September 2021.  In accordance with Section 41 (6) of the Workplace Relations Act 2018, the period that can be taken into account (the cognisable period) in relation to this complaint is six months from the date the complaint was submitted to the WRC which gives a cognisable period from 28 March 2021 until 27 September 2021.  However, as the Complainant’s employment with the Respondent ended on 10 May 2021, the appropriate cognisable period for the herein complaint is the period from 28 March 2021 until 10 May 2021.  I do not have the jurisdiction to investigate any complaints which fall outside the cognisable period.

As the Complainant was unable to identify any breaches in relation to the payment of wages during the cognisable period, I find that this complaint is not well founded.

I find that this complaint is not well founded.

The Complainant was unable to provide any evidence to support his contention that he worked excessive night hours during the cognisable period.

The Respondent rejected the Complainant’s complaint.

The Complainant’s referral in respect of this complaint was received by the WRC on 27 September 2021.  In accordance with Section 41 (6) of the Workplace Relations Act 2018, the period that can be taken into account (the cognisable period) in relation to this complaint is six months from the date the complaint was submitted to the WRC which gives a cognisable period from 28 March 2021 until 27 September 2021.  However, as the Complainant’s employment with the Respondent ended on 10 May 2021, the appropriate cognisable period for the herein complaint is the period from 28 March 2021 until 10 May 2021.  I do not have the jurisdiction to investigate any complaints which fall outside the cognisable period.

As the Complainant was unable to identify any breaches of the provisions of the Organisation of Working Time Act in relation to excessive night hours during the cognisable period, I find that this complaint is not well founded.

I find that this complaint was not well founded.

Constructive dismissal – payment of wages – working time