Complainant

Respondent

Parties

Mark  Lowry

JJ Fleming  and Company Limited (amended on consent)

Representatives

  Self-Represented

 John Mitchell, Solicitor

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-00047869-001

24/12/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The Complainant appeared in person and swore an affirmation. Ms Linda Byrne, partner and witness of the Complainant also swore an affirmation.

The Respondent was represented by Mr John Mitchell, Solicitor with Mr Pat Fleming, Managing Director and Mr Denis Fleming, Director. Both witnesses swore an affirmation. There were no written submissions from the Respondent but as requested furnished payslips and contract of employment post hearing.

Both parties were given time set out their case and cross examine each other. The Respondent did cross examine the Complainant and the witness but where it did not offer any evidence in defence of the claim, the Complainant did not cross examine any of the Respondent’s witnesses.

The Respondent’s registered name was confirmed as JJ Fleming and Company Limited and the title was amended on consent at the hearings.

The Complainant gave evidence that he commenced employment on 27 September 2004 and worked as a Sales Manager. In his evidence he stated he worked 45 hours per week and earned €724.53.

It was his evidence that his workload was excessive which resulted in him having to work additional hours, he was verbally abused by the management and told three days before Christmas 2019 that a new more senior manager had been hired and told by Mr Fleming that if he didn’t like it, he could leave.

The Complainant presented a medical report dated 14 December 2021 and gave evidence that he attended his GP on 16 January 2019 due to sleeping difficulties and again on 24 December 2019 with sleeping difficulties and stress due to work issue.  

It was also the Complainant’s evidence that he was promised a pay rise 8 years previously but that never materialised.

It was his claim that he left in October 2021 on the advice of his GP. He gave 2 weeks’ notice and on his last day of work on 22 October 2021 he was called into Pat Flemings office. Mr Fleming said he did not want him to go but at that stage the Complainant had a new job arranged.

The Complainant gave evidence that he took up alternative employment on 24 October 2021 with a higher salary than when he worked for the Respondent.

Ms Bryne gave evidence of her opinion as to the effect the job had on the Complainant.

At the outset of the hearing the Respondent gave evidence that the Complainant earned a basic wage of €634.62 per week plus overtime averaging between 5 - 10 hours and paid €10.58 BIK for a company car.

After hearing the evidence of the Complainant, the Respondent chose not to present any evidence in defence of the claim of constructive dismissal. It was submitted that the onus of proof was on the Complainant, and he failed to discharge the heavy burden of proof necessary. It was submitted on this basis the case should be dismissed.

Section 1 of the Unfair Dismissals Act 1969 outlines two scenarios where an employee’s resignation may be considered a constructive dismissal. First, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; in essence that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed (the ‘contract test’).

In the English Court of Appeal case of Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 165, which has been referred to frequently by the Labour Court and the Employment Appeals Tribunal (EAT) in this jurisdiction, it was held that to meet the ‘contract test’ an employer must be ‘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’.

Secondly, the Labour Court in the case of Waterford Senior Care Ltd & TabbUDD1938 (July 2019) stated that—

“the Act at Section 1 addresses the issue of reasonableness. It is settled law that the Court, in considering a complaint of constructive dismissal, must consider this issue either as an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, he is justified in leaving”

In further assessing the reasonableness test and the burden of proof, the EAT in McCormack v Dunnes Stores UD1421/2008,stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employers conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In the case ofDuane v Masonry Fixed Services Ltd, heard in 2016, the EATdetermined that:

“It is incumbent on an employee in a constructive dismissal scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve this. The claimant did not do so. He resigned before allowing the Respondent a reasonable opportunity to resolve his grievances.”

In the case ofJabczuga v Ryanair Ltd, the EATstates:

“The claimant in this case failed to fully engage with an exhaustive grievance procedure available to her. In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the Respondent and the Tribunal is satisfied that she did not act reasonably in so doing. Accordingly, this claim pursuant to the Unfair Dismissals Act 1977 to 2007 fails.”

The Courts have placed the burden of proof on the Complainant to show that his resignation was justified in all the circumstances.

There were particular points matters given in cross examination by the Complainant which are relevant to a claim for constructive dismissal. The Complainant was referred to his contract of employment and in particular, the Grievance Procedure. The Complainant was asked if he reduced his grievances to writing as per the policy and he confirmed he was not aware he had to. He confirmed he received a contract of employment.  Consequently, the Complainant failed to exhaust all internal procedures or made any formal attempt to resolve matters in accordance with the relevant procedure outline in his signed contract of employment. The Respondent was not given a reasonable opportunity to address these issues.

As regards the conduct of the Respondent, the Complainant gave evidence that he was bullied and gave one incident when there were fraught words exchanged between himself and Mr Fleming around the running of the Service Department. From the evidence before me there was only one incident described by the Complainant in evidence. An isolated incident of the behaviour described by the Complainant may be an affront to dignity at work, but a once off incident, is not considered to be bullying.

Upon further examination the Complainant confirmed he worked his full notice period and had a job arranged prior to leaving the Respondent. While working a notice period of itself is not detrimental to a claim for constructive dismissal in this case, it does appear at odds with the Complainant’s submission that he was under such harm to his health as a result of the workload and behaviour of the Respondent that he was willing to continue for an additional two weeks in the workplace.

I cannot accept that the Respondent was guilty of conduct which “is a significant breach going to the root of the contract of employment” applying the test in Western Excavating (ECC) Ltd v Sharp.

There were matters put to the Complainant around events in his personal life around the time he claimed he was stressed because of work. These were denied by the Complainant as the reason for his stress. Upon inquiry the Complainant was asked about his attendance at the GP on two occasions 16 January 2019 and 24 December 2019, yet it was his evidence that the employment relationship deteriorated at Christmas 2019 when he was notified of the new appointment in the business. I find this to be contradictory to the Complainant’s earlier evidence that he was overworked due to the heavy task load yet when he was given an additional help, he then claims he was stressed. Furthermore, there was no specific incident or reason why he went to the GP in January 2019 related to his work set out in evidence.

As regards Ms Byrne’s evidence, she confirmed upon inquiry that she was not a medical doctor, nor did she witness first hand the complaints made by the Complainant in the workplace. Applying the law of evidence, her testimony has no evidential value to this case.

In conclusion The Complainant resigned to take up another job.  I find that the Complainant was not constructively dismissed.

I find that the Complainant was not constructively dismissed.

Unfair Dismissal – Constructive Dismissal