Complainant

Respondent

Parties

Kazimierz  Partyka

Burnside Autocyl (Tullow) Limited

Representatives

Self-Represented

Mr. John Barry, Management Support Services (Ireland) Ltd

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-00034873-001

26/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00034873-002

26/02/2020

The Complainant commenced employment with the Respondent on 17th January 2004. The Complainant was a full-time, permanent member of staff, in receipt of a weekly salary of €600.00. At all times the Complainant’s job title was described as that of “assembly worker”. The contract of employment was terminated on 12th October 2019.

On 26th February 2020, the Complainant referred the present complaints to the Commission. Herein, he alleged that he was dismissed in response to his raising a series of health and safety issues. In denying this allegation, the Respondent submitted that the Complainant resigned his employment during a period of sick leave.

Following a preliminary application by the Respondent, the Complaint elected to pursue the complaint under the Unfair Dismissal Acts only. The Complainant, and his partner, gave evidence in support of the complaint, with the assistance of an interpreter. The Respondent adduced evidence from the General Manager and a HR representative.

Aside from the issue of election, no further matters pertaining to my jurisdiction to hear the complaint were raised at any stage of the proceedings. In circumstances whereby the fact of dismissal was in dispute, the Complainant presented his evidence prior to the Respondent.

The Complainant commenced employment on 17th January 2005. His role was that of an assembly line worker, assembling and testing hydraulic cylinders. In or about March 2015, the Complainant was moved to a different part of the factory. During 2018, the Complainant began to experience some work-related health problems.

On 15th January 2019, the Complainant suffered a cut to his finger. This injury necessitated a short period of sick leave. During this period of sick leave, the Complainant formed the view that the injury was caused by a lack of adequate lighting in the area, a matter that was the subject of numerous prior complaints by the Complainant. Following his return to work, the Complainant continued to believe his work environment was the underlying cause of a number of his health conditions. On foot of the same, the Complainant commissioned a medical report outlining the toll the Complainant’s working conditions were taking on his health.

On 6th September 2019, the Complainant corresponded with the Respondent setting out his concerns in this regard. Herein he alleged that a lack of adequate lighting, excessive noise and incorrect use of chemicals within had damaged his health on foot of the same, the Complainant stated that, “I immediately terminate my presence at the Burnside facility”. The correspondence ends with the Complainant requesting a response and suggesting that the parties meet on foot of the same. Following further correspondence in relation to the matter, a meeting was arranged between the parties on 12th September 2019. While the Complainant received correspondence to the effect that the issues raised by him had been resolved, he was informed that the issues remained ongoing. As a means of resolving the issue, the Complainant suggested a new role that would remove him from the issues that were causing the deterioration to his health. He suggested that he be appointed a sales representative, seeking to expand the Respondent’s services into new territories. Whilst the Respondent initially seemed receptive to this idea, during the negotiations they countered with an offer that would have the effect of reducing the Complainant’s wages to less then the national minimum wage and removing all employment benefits. The Complainant stated that he could not accept the terms being offered by the Respondent.

On foot of the same, the Respondent stated that they intended to accept the Complainant’s resignation and that his employment was deemed to be terminated. This came as a surprise to the Complainant as he had not intended to resign his employment at any stage. He submitted that the correspondence of 6th September was not intended as a resignation but sought to inform the Respondent that he did not intend to return to work until such a time as the issues raised were rectified. He stated that the Respondent capitalised on the wording of the same, in circumstances whereby English was not his first language, to remove him from employment when he would not accept an offer that he believe to be illegal. He absolutely denied that he resigned his employment at any stage and submitted that he had been unfairly dismissed within the meaning of the impleaded Act.

In answer to a question, the Complainant accepted that he had previously been provided with noise cancelling headphones, but that these did not resolve all of the issues experienced by him. He accepted that he was aware of the internal grievance procedure and stated that his correspondence of 6th September was an effort to engage in the same. He accepted that the waited for a period months prior to informing the Respondent of his medical report but stated that he wished to collect as much evidence as possible prior to bringing the matter to the Respondent. He denied that he resigned his employment at any stage and submitted that this was the result of an interpretation taken by the Respondent. Finally, the Complainant absolutely denied that he sought to raise the issues as leverage for a negotiation to a new role, he stated that the purpose in raising the same was to remove himself from a potentially harmful environment.

The Complainant’s partner gave brief evidence supporting the Complainant’s position regarding the meetings in respect of the new position.

In defending the Complainant, the Respondent submitted that the Complainant had raised issues in the course of his employment. When these issues were resolved, the Complainant attempted to negotiate an alternative position that was completely separate from his role. When the Respondent did not agree to the terms proposed by the Complainant, he resigned his employment. They submitted that the foregoing sequence of events are not sufficient to ground an allegation of constructive dismissal as defined in the Act.

The Respondent agreed the Complainant raised significant issues in the course of this correspondence of 6th September. Whilst it was apparent that the medical report appended to the correspondence was drafted some months ago, the Respondent undertook an investigation of the Complainant’s working environment on foot of the issues raised. The Respondent further understood, that the Complainant had resigned his employment in the course of this correspondence, pointing the to the phrase, “I immediately terminate my presence at the Burnside facility”. By response, the Respondent wrote to the Complainant on 9th September 2019, requesting that he retract this resignation and invited him to a meeting to address his concerns. A meeting in respect of the same was duly convened for 13th September, less than a week after the initial letter of complaint was received. In the course of this meeting, the Complainant stared that he would retract his resignation on foot of being appointed to a new role within the organisation. The role envisioned was to be that of a sales representative based in Poland, seeking to expand the Respondent’s products into new territories. The Complainant gave the Respondent a deadline of 27th September by which to accept the proposal, failing the same he would resign his employment. The Respondent, in considering the Complainant’s proposal, suggested that the Complainant be engaged as a contractor for such purposes. When the Complainant stated that he had no interest in such a positon, the Respondent accepted the Complainant’s resignation, with the employment duly terminating on 10th October 2019.

In the present case, the Complainant submitted that upon raising a number of health and safety concerns, his employer dismissed him rather address those concerns or move him to a new role. By response, the Respondent submitted that the Complainant issued a conditional resignation from employment. When it became apparent that they would not reach an agreement, the Respondent accepted the resignation offered and the contract of employment was duly terminated.

Having regard to the foregoing, the central aspect to this complaint is to determine whether the Complainant resigned or was dismissed. Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v Joseph McManus, UDD1753, the Labour Court held that,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined”.

Regarding statements that may amount to a termination of employment, in the matter of Devaney -v- DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal held that,

“…what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

In the matter of Millett -v- Sherkin [2004] 15 E.L.R. 319, the 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. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation.”

The Court went on to state that,

“An employee may make a decision which is not fully informed because they are not in a position to fully evaluate their options or they may act on a misinterpretation of something which is said or done. Where the situation is still retrievable it would be unreasonable for an employee to be denied an opportunity to recant once the true position becomes clear.”

In the present case, the Respondent has submitted that the Complainant’s correspondence of 6th September constituted a resignation from employment. Having reviewed this correspondence in detail, and heard the Complainant’s direct evidence in relation to the same, it is clear that this is not the intention behind this correspondence. While the Complainant does discuss an immediate termination, this is said to be of “his presence” within the facility. Likewise, the Complainant stated that he is “reporting resignation”, however this is in relation to “being in place of work I occupy”. The correspondence ends with a request that the Respondent seek to resolve the issues raised. Having regard to the same, it is clear that the Complainant sought to remove himself from the working environment until such a time as the issues raised are addressed. I further accept the Complainant’s submissions that any ambiguity in relation to the same maybe addressed by the fact that English is not his first language and, whilst he is in possession of a conversational level of English, he was unaware of the terminology used in such correspondence.

The Respondent submitted that following a meeting in respect to the foregoing, the Complainant stated that his resignation would take effect on 27th September in the event that his demands were not met. On 17th September, the Complainant emailed the Respondent stating that,

“I wanted to confirm that until my resignation is reviewed by Burnside I will not make further moves including contacting the HSA. However, this time is ending 27th of September and by that date I would like that case of my resignation from work would be resolved”.

Having reviewed this correspondence, it is clear that while the same refers to a potential resignation, the reference herein is to the Complainant’s intention that the same can be avoided.  Again, this correspondence cannot be said to constitute an unambiguous and unconditional resignation of employment. The use of the word “resignation” in this context seems to relate to the Complainant’s removal from the place of work, rather than the unilateral termination of his employment. In any event, it is apparent that beyond the date of 27th September, the parties remained in negotiation and the resignation did not take effect.

Thereafter, it became apparent that the negotiations regarding the Complainant’s alternative employment had reached an impasse. On 10th October 2019, the Respondence informed the Complainant that they accepted his resignation and that his employment was duly terminated. Having regard to the foregoing points, it is apparent that the Complainant’s of resignation of employment was far from unambiguous and unconditional. If the Respondent harboured any doubts in this regard, these would be dispelled by the Complainant’s correspondence of 21st October. Herein, the Complainant absolutely denied that he resigned on 6th September or any date thereafter. On receipt of this correspondence, the ambiguity regarding the Complainant’s resignation had been resolved, with the Complainant clearly asserting that he had never intended to terminate his employment, but to remove himself from the Respondent’s premises. At this point, the Respondent could have enquired as to the Complainant’s position regarding his employment. However, by response they stated that their interpretation of the correspondence of 6th September was that the Complainant intended to terminate his employment and that they had simply accepted the resignation thereafter.

Having regard to the accumulation of the foregoing points I find that the Complainant did not at any stage issue an unambiguous and unconditional notice of resignation. As a consequence of the same, I find that the Complainant was dismissed by the Respondent. In circumstances whereby the Respondent has not sought to rely on the grounds for fair dismissal as set out in the Act, I find that the Complainant was unfairly dismissed.  

CA-00034873-001 - 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 her 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, compensation is the most appropriate redress 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 found alternative employment in the weeks following his dismissal. Having regard to the totality of the evidence presented, in particular the Complainant’s evidence in respect of mitigation of losses, I award him the sum of €4,000 in compensation.

CA-00034873-002 - Complaint under the Safety, Health and Welfare at Work Act

I find that this complaint is not well-founded.

Resignation, Conditional, Ambiguous