Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Aoife Burke Chief State Solicitors Office

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00043691-001

21/04/2021

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977-2015 and has submitted that he had to leave his job due to the conduct of his employer (CA-00043691-001)

The Complainant, who gave evidence under oath and represented himself, commenced employment with the Respondent on the 8th January 2007. The Complainant was employed as a clerical officer and his gross pay was €673.00 (€520.00 net) for 37.5 hours worked.

The Complainant outlined the background to his resignation on the 11th September 2020. In 2016, the Complainant was facilitated with a priority transfer from his role in a divisional office to a department in County Tipperary and following a 6 month period was reassigned to a department in County Wexford.

Unfortunately, due to difficult family and personal circumstances the Complainant sought a transfer back to Dublin in or about May 2019. However, the Complainant was informed he could not be facilitated at this juncture however it was suggested he could avail of a career break. The Complainant, reluctantly, at this juncture decided to avail of the  career break from on or about August 2019.

Ultimately, the Complainant sought to resume his employment in or around January 2020 due to financial hardship. In or around February 2020, the Respondent advised the Complainant that his only option was to return to the County Wexford office as this was his location prior to his career break commencing.  The Complainant believed did not have any reasonable response to his request for a transfer in order to deal with both his family and personal circumstances and therefore he contacted public and employee support representatives to support his permanent return from a career break within the Dublin region. The Complainant submitted that the response from the Respondent to him eliciting assistance from the public and employee representatives was to threaten him with disciplinary action.

The Complainant did avail of a temporary assignment in an office in County Kildare which ended on the 21st August 2020.  However, in or around April 2020 the Complainant was offered the opportunity to return to a department in County Wexford on a permanent basis which he reluctantly declined due to the aforesaid personal circumstances and due to the initial lockdown due to the pandemic. In or around July 2020 the Complainant was offered the services of disability liaison officer which he declined.

Upon finishing his temporary assignment, the Respondent reassigned the Complainant to an office in County Wexford to facilitate his ongoing circumstances as he was  continuing to work remotely in County Kildare but this was unsuitable for the Complainant as he was advised that office base was paramount and remote working was at their discretion.

The Complainant submitted that he was left with no alternative to resign his position on the 11th September 2020 as the Employers human resources department were unwilling to facilitate him with a transfer to Dublin in light of his ongoing family and personal circumstances. 

The Complainant took up alternative employment  in Dublin on the 14th September 2020  and this employment finished after approximately six months.

The Complaint submitted, in or about November 2020, he sought to be reinstated in employment with the Respondent. The Complainant request to be reinstated was declined but he was advised that he could apply through the Public Appointments Services. Following a successful interview in December 2020, the Complainant  was placed on a panel in March 2021 and commenced employment on the 12th April 2021 as a temporary clerical officer in his former department in Dublin and this contract was originally until the 31st December 2021 but was further extended until 31st December 2022

The Complainant applied in 2022 through open competition been managed by the Public Appointment Services for a permanent clerical officer appointment and was successful at interview and was appointed to a permanent position in July 2022 with a probation period of year.

The Complainant submitted that although he has now been appointed to a permanent clerical officer position he should be re-instated or re-engaged on a permanent basis with his salary and pension restored due to his previous 14 years previous service as he believed he had no alternative to resign due to the repeated failure of the Respondent to deal with his transfer requests due to his difficult family and personal circumstances.   

This Complaint was received by the Workplace Relations Commission on the 21st April 2021 and the Complainant explained this was submitted outside the six month period due to his ongoing family circumstances.

The Respondent accepts the background facts and timeline in relation to the Complainant’s employment. The Respondent had legal representation and two witnesses attended on their behalf of whom one gave evidence under oath.

The Respondent denies the totality of the allegations contained in the complaint and in particular that the Complainant was constructively dismissed and in that regard the Respondent submits that, on the contrary, the Complainant resigned to take up alternative employment.

In a preliminary application, the Respondent submitted that the complaint herein is statute barred. In that regard, the Respondent submitted that the Complainant wrote to the Respondent on the 9th September 2020 to advise that he wished to resign effective from the 11th September 2020. The Respondent acceded to his request to be released from his notice period in order to take up alternative employment on the 14th September 2020.

The Complaint, herein, was received on the 21st April 2021 and as the Complainant resigned on the 11th September 2020 and is accordingly out of time. The Respondent submitted that it is well settled that a complainant who is attempting to set aside the statutory time limit must show reasonable cause prevented them from lodging the complaint on time and that the cause must have arisen during the initial six month period. The Respondent submitted that it is not within the gift of the Complainant to delay the submission of a complaint just because they think they are allowed due to external factors.

The Respondent submitted that having regard to the Unfair Dismissals Act, 1977-2015, no dismissal covered by the Act took place as the Respondent did not end the Complainants employment. Further, the Complainant simply resigned from his position to take up another position and the Respondent facilitated his request not to work out the notice period in order to take up the new position.

The Respondent submitted that the factual scenario does not support a breach of the aforesaid act in any circumstances. The Respondent submitted that as the alternative employment did not work out for the Complainant that he should be entitled to return to his former employment with the Respondent as he now contends his former resignation was involuntary.

The Respondent submitted that the accommodation offered to the Complainant notwithstanding his contractual obligation to work in County Wexford, following his request to transfer there in the first place, were a reduced work pattern, a career break, an early return from the career break, withdrawal of the early return where the Complainant didn’t want to return to a particular location, an extension of the temporary assignment up to the date of the end of his career break and an offer to work from home. 

 It is the Respondents submissions in conclusion that this Complaint in the first instance  is statute barred and furthermore it is not stateable, the Complainant resigned to take up another job, the fact that the alternative employment did not work out does not entitle him to be reinstated to his previous position with the Respondent and in the alternative the Respondents actions during the tenure of his employment were reasonable to such a degree that the threshold for constructive dismissal cannot be reached. 

I have carefully listened to the evidence tendered and submissions, both oral and written, made in the course of the hearing of this matter by both parties.

The Respondent raised a preliminary objection that the Complaint herein was statute barred.

As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).

Section 41(6) of the Workplace Relations Act 2015 provides that:

“Subject to Section (8) an adjudication officer shall not entertain a complaint referred to him or her  under this section, if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

And Section 41(8) of the 2015 Act states that

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within the period was due to reasonable cause”

The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5):

The Labour Court stated:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford and excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not irrational or absurd.  In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.  The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The Complainant wrote to the Respondent on the 9th September 2020 to advise that he wished to resign his position effective from the 11th September 2020 in order to take up a new position with a different employer. The Respondent acceded to the Complainant’s request by releasing him from his notice period in order to allow him to commence his new employment on the 14th September 2022.

I accept the bona fides of the Complainant and that he was facing challenging personal and family circumstances since January 2019.  Further, since the date of his resignation he took up alternative employment, proceeded to reapply through an open competition in November 2020 for reappointment with the Respondent, prepare for interview in December 2020 and ultimately be placed on a prospective panel in March 2021.

In the circumstances of this case and upon consideration of the explanation provided by the Complainant for the acknowledged delay in the filing of this Complaint, I am not satisfied that the failure to present the complaint or refer the dispute within the period was due to reasonable cause. In particular it is noted his challenging circumstances did not emanate in the course of the six month period from his resignation 

Therefore, this complaint is out of time, and I do not have jurisdiction to hear it. Unfortunately, in those circumstances I must find that the complaint is not well founded and accordingly fails.

Notwithstanding that this Complaint is statute barred, and for the avoidance of doubt, I have considered the nature of the constructive dismissal complaint.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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 the 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”

This statutory definition of (constructive) dismissal provides for two tests, the contract test and the reasonableness test. The contract test is where the employee argues that he or she was “entitled” to terminate the contract because of the conduct of the employer which constitutes a fundamental breach of the employee’s contract of employment. The second test, which is the reasonableness test, has two elements. First, an employee may allege that while an employer may have acted within the terms laid down in the contract of employment its conduct may be none the less unreasonable. Second, the employee has to show that he or she acted reasonably in terminating the contract of employment in the circumstances. This latter element is a key factor as it requires the employee to have considered all other possibilities prior to taking the step of terminating his or her employment.

The contract test has been summarised in Western Excavating (ECC) Ltd. v Sharp by Lord Denning MR as:

“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.”

In the circumstances of this case, the Complainant has not identified any breach of his contract of employment on the part of the Respondent and certainly none which would amount to a significant breach going to the root of the contract of employment.

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test. It is well established law that the burden of proof in a constructive dismissal case is on the employee and the burden is extremely high.

In Cedarglade Limited v Tina Hliban, the Labour Court noted that "the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment" and held that the complainant failed to do so. In Murphy v CLI Insurance Services Limited, the EAT noted that "in a constructive dismissal case the employee must show that because of the employer's conduct he was entitled to resign" and held that the complainant failed to do so.

Similarly, in Burns v ACM Community Development Society Limited, the EAT held that the complainant fell "short of the high bar set to prove constructive dismissal".

The decision in Byrne v Horwath Bastow Charleston Wealth Management Limited sets out the test for proving the very high threshold for constructive dismissal. In this case, the claimant argued her manager had engaged in bullying and harassing behaviour towards her and had raised her concerns with HR. Notwithstanding her discussions with HR, the respondent employer did not believe it was necessary to move the claimant to another reporting line. The claimant chose to resign instead of exhausting the company's bullying and grievance policies claiming that she "had lost confidence in utilising those procedures".

The EAT rejected the claimant's case and set out the test for claimants to satisfy in a constructive dismissal case as follows:  "In constructive dismissal cases, the onus is placed on the Claimant to show that her conditions and treatment in the workplace by the Respondent were so intolerable and intractable that she had no other reasonable option but to involuntary resign”

The burden of proof in a Complaint such as this is an onerous one, in that the Complainant must prove not only that the Respondent's behaviour was unreasonable, but also that the Complainant response in resigning was reasonable.

It is for the Complainant to show on the facts of his case that he meets this high threshold as set out above and I have found that the Complainant has failed to do so insofar as he has not demonstrated, to any degree, that the Respondent's behaviour was so unreasonable that he was left with no other option but to resign.

In the particular circumstances of this Complaint and upon consideration of all the relevant correspondence, documentation, oral evidence and submissions I find that this Complaint is not well founded.

I find that the Complaint (CA-00043691-001) made pursuant to Section 8 of the Unfair Dismissals Act, 1977- 2015, is not well founded.

Statute Barred – Constructive Dismissal