Complainant

Respondent

Parties

Paul Tierney

Isupply Limited

Representatives

Ms. Pamela Clancy, Cashin Clancy Solicitors

Ms. Siobhan McGowan, Alastair Purdy & Co. Solicitors

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-00042717-001

25/02/2021

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

CA-00042717-002

25/02/2021

The Complainant commenced employment with the Respondent on 1st October 2012. The Complainant was a full-time, permanent member of staff, in receipt of a weekly payment of €740.00. The Complaint resigned his employment in August 2020. The exact date of termination is in dispute between the parties.

On 25th February 2021, the Compliant referred the present complaint to the Commission. Herein, he alleged that he had been constructively dismissed on 28th August 2020. In particular, the Complainant alleged that he was subjected to an unfair disciplinary process, and that the Respondent refused to process a grievance in relation to the same at the Complainant’s request. By response, the Respondent denied that the complaint, submitting that they were willing to arrange a grievance meeting in relation to the Complainant’s concerns, but that he elected to resign without engaging in the same.

A hearing in relation to this matter was convened and finalised for 13th January 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

As the matter involved an allegation of constructive dismissal, the Complainant presented his complaint in advance of the Respondent.

The Respondent raised a preliminary issue as to my jurisdiction to hear the complaint as referred. Given the nature of the same, this will be considered after a summary of the evidence relating to the substantive matter.  

The Complainant commenced employment with the Respondent on 1st October 2012, at all times his role was described as that of “printer”. On 16th March 2020, the Complainant was laid off as a result of the restrictions arising from the Covid-19 pandemic. Following the same, the Complainant was requested to come in for “one or two days” in March 2020. The Complainant was informed that he would not be paid for the same as the Respondent was not trading at that moment in time.

On attending the workplace, the Complainant discovered that a significant amount of work had to be completed and that a number of other employees were on the premises. The Complainant was not provided with protective equipment, nor were any other protective measures in place at the relevant time. The Complainant sought out the Managing Director of the Respondent to discuss these matters. During the subsequent conversation, the Complainant’s outlined his concerns regarding payment for the day of work. At this point the Managing Director was dismissive of the Complainant’s concerns and a verbal disagreement ensued whereby the Complainant stated that he believed he had been misled by the Respondent.

Following this date, the Complainant remained on lay-off and duly return to work on 1st July 2020. On his return, the Complainant was invited to a meeting. While the Complainant was not aware of the purpose of this meeting in advance, it later transpired that it was a hybrid investigation / disciplinary meeting. The Complainant was not given sight of any complaint in this regard, was not given any right of representation and was not provided with adequate notice of the same. Shortly following the meeting, the Complainant received correspondence to the effect that he was to received a “written warning” in relation to his conduct the previous March. The Complainant was not informed how long this sanction would remain on file and was not advised of any right to appeal the sanction.

On receipt of this sanction, the Complainant became extremely concerned regarding the manner in which the Respondent was conducting itself and commenced a period of certified sick leave thereafter. The Complainant instructed his solicitor to correspond with the Respondent on his behalf on 5th August 2020. Herein, the Complainant requested an appeal of the disciplinary sanction and raised a number of grievances regarding the Respondent’s recent activities. By response, the Respondent corresponded on 19th August advising that they had no internal procedure for an appeal of the grievance, and advised that the matter could be referred to a third party if necessary. The Respondent further advised that if the Complainant did raise the matter with the Respondent directly (as opposed to through his representative) prior to 28th August, they would have considered him to have voluntarily left his employment.  By correspondence dated 28th August, the Complainant’s representative restated his position and sought clarity as to who was to be appointed to chair the grievance meeting. By return correspondence dated 12th October 2020, the Respondent’s representative set out their response to the issues raised by the Complainant and requested that the Complainant set out his grievance in writing. By subsequent correspondence, the Complainant’s representative stated that his grievances had already been set out, both verbally in writing. The Complaint submitted that at this point the Respondent demonstrated no willingness to progress his grievance, or to resile from the fundamentally flawed disciplinary process. On foot of the same, the Complainant resigned his position and submitted the present complaint.

The Complainant was one of the longest standing employees of the Respondent, holding a supervisory role during the relevant period for the purposes of the present complaint. As a consequence of the restrictions imposed by the Covid-19 pandemic, the Respondent laid off the majority of its staff in March 2020. Just prior to the lockdown announcement, the Respondent received an order that it was obligated to complete. On foot of the same, the Managing Director requested that the Complainant attend work and complete this order. In the course of this conversation, the parties agreed that the Complainant would receive “time in lieu” for these hours. The Complainant was advised that he would be the only person in the print department.

On attending the Respondent’s premises, the Complainant requested that her be reimbursed for his travel expenses and paid in cash for the day of work. On this request being denied, the Complainant engaged in a verbal assault on the Managing Director. The Complainant railed against the perceived lack of compliance with Covid-19 safety measures and the fact he was asked to attend work on this date. Due to this escalation, the Managing Director attempted to walk away. On doing so, the Managing Director noted that the Complainant had thrown a metal spanner across the floor in rage. The Complainant then left the Respondent’s premises without completing the work for which he had been asked to attend.

On 23rd June, the Complainant was asked to return to work. The Complainant agreed to the same, without raising any issue regarding any alleged mistreatment, and re-commenced employment on 1st July 2020. On the Complainant’s return to work he was invited to an investigation meeting by the Respondent, where he was asked to outline his version of events. Following the same, the investigator spoke with the Managing Director in respect of the same. After consideration by both parties, the Complainant was issued with a written warning. While it was accepted that the disciplinary process had some shortcomings, it was submitted that the outcome was based on the admitted version of events and could have resulted in a more severe outcome. Following receipt of the sanction, the Complainant commenced a period of sick leave and ultimately never returned to the workplace.

Correspondence was received from the Complainant representative on 5th August 2020. This correspondence stated that the Complainant “may” go on to lodge a formal grievance, but accepted that this had not yet been done by their client. By response, the Respondent requested that the Complainant confirm that he wished to pursue a grievance, at which point the Respondent would arrange the same. In subsequent correspondence, the Complainant refused to particularise this grievance and resigned without  engaging in these procedures.

By submission, the Respondent’s representative submitted that the Complainant was not constructively dismissed from his role. They submitted that the Complainant has not demonstrated any unreasonable behaviour on the part of the Respondent. Furthermore, the Respondent submitted that the Complainant’s failure to engage with the grievance procedure is fatal to the present complaint.

At the outset of the hearing, the representative for the Respondent raised a preliminary issue as to jursitiction. In particular, they submitted that as the Complainant’s last day of employment was 5th August 2020, the matter was referred in excess of six months from the same and is consequently statute barred.

By response, the Complainant’s representative submitted that the Complainant was employed by the respondent until his resignation on 1st October 2020.

In circumstances whereby the present complaint was referred to the Commission on 25th February 2021, if the termination of employment occurred prior to 25th August 2020, the matter will be deemed to be statute barred for the purposes of the present Acts.

On 5th August 2020, the Complainant’s representative issued correspondence outlining a number of issues that had arisen in the course of his employment. Following the same, this correspondence states that,

“…he believes the relationship of trust essential between employee and employer has irreparably broken down and our client views himself as having being constructively dismissed from his employment.”

The correspondence goes on to outline the various claim the Complainant may bring on foot of the same. Thereafter, the representative for the Complainant goes on to state,

“However, before we proceed to file such claims, we are writing to put you on notice of our client’s position, and we note at present, you are dealing with our client’s request for an appeal of the disciplinary sanction against him, which will have to be dealt with by an external, independent individual, and he may also lodge a formal grievance in relation to his various complaints.”

In the matter of Millett v Shinkin DEE 4/2004the Labour Court held that,

 “A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end.”

Having reviewed this correspondence in detail, I find that the same does not serve to terminate the Complainant’s employment. While the correspondence does state that the Complainant views himself as dismissed, the following paragraphs outline that the Complainant is willing to engage with the Respondent regarding the appeal of the disciplinary sanction and the prospective grievance. The import of this correspondence is that the Complainant feels that he, at that point, a valid complaint for constructive dismissal but is willing to remain in employment in order to potentially rectify the issues by way of the internal procedures.

Notwithstanding the same, it is apparent from the subsequent items of correspondence that both the Complainant and Respondent viewed the employment as ongoing until, at least, October 2021.

Having regard to the totality of the foregoing points, I find that the termination of the Complainant’s employment occurred within six months of the referral of the present complaint, and consequently the matter is not statue barred for the purposes of the present Acts. 

Section 1 of the Unfair Dismissals Act, 1977, 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 Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘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 further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

In the present case, the Complainant has alleged that the imposition of a fundamentally flawed and unfair disciplinary process, followed by their failure to allow and appeal of the same or process his grievance relation to the same, eroded the trust and confidence between the parties, to the point whereby he could consider himself to be constructively dismissed. In the alternative, the Respondent submitted that the Complainant was disciplined on foot of admitted wrong-doing, and that they were willing to process a grievance should the Complainant particularise the same.

Regarding the disciplinary process, it is apparent that the same was conducted in breach of the Complainant right to fair procedures. The Complainant was not provided with advance notification of the allegations against him, he was not provided with a right of representation, and he was not provided with statements of any witnesses to the incident in question. Regarding the sanction itself, I note that it did not contain any expiry date and presumably was to exist into perpetuity. Finally, I note that the process did not allow for any internal appeal.

In the matter of McKenna v Pizza Express Restaurants Ltd [2008] 19 E.L.R. 234, the Employment Appeal Tribunal found that an unfair disciplinary process may, in certain circumstances, ground an application for constructive dismissal. Nonetheless, it is also apparent that being subject to an unfair process does not automatically give rise to a valid complaint of constructive dismissal. In this particular instance, the Complainant sought to have the matter appealed notwithstanding the absence of any express right to do so. By response, the Respondent stated that they would not engage in such a process and the Complainant should raise the matter with a third party. This request on the part of the Complainant allowed the Respondent an opportunity to mend their hand regarding the process and seek to engage with the Complainant on a constructive basis. The Respondent’s failure to do so was unreasonable in all the circumstances and served to undermine the relationship of trust and confidence between the parties.

Regarding the invocation of the grievance procedures, I accept the Respondent’s submission, that the correspondence of 5th August 2020 refers to the Complainant’s grievances without formally raising the same. However, by correspondence dated 28th August 2020, the Complainant’s representative requests clarity as to the person that the Respondent intends to nominate to chair the grievance meeting. At this point, it is clear that that the Complainant outlined his grievance, in some detail, and formally requested a meeting in respect of the same. Notwithstanding the same, the Respondent did not arrange such a meeting, instead requesting that the Complainant particularise a complaint that had already been set out in writing. The Respondent’s served to further erode the relationship of trust and confidence between the parties and evidenced the Complainant’s contention that they did not wish to investigate his grievances.

Having regarding the totality of the evidence presented, and the accumulation of the foregoing points, I find that the Complainant was constructively dismissed within the definition of Section 1 of the Act. Consequently his application succeeds and the complaint is well-founded.

CA-00042717-001 Complaint under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, I find that compensation is the most appropriate remedy in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard, I note that the Complainant’s evidence that he secured alternative employment some time following his dismissal, however the same was at a lower rate of pay. As a consequence of the same, the Complainant is suffering on ongoing loss in respect of the former rate of pay. Having regard to the Complainant’s efforts to mitigate his losses, I award him the sum of €6,000 in compensation.

CA-00042717-001 Complaint under the Terms of Employment (Information) Act

This matter was not pursued at the hearing and consequently is not well-founded.