Complainant

Respondent

Parties

Anthony  Martin

Wakely Engineering Limited

Representatives

Self-Represented

Mr. Barry O’Mahony BL, instructed by  ARAG Legal Protection

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-00044832-001

29/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00044832-004

29/06/2021

The Complainant commenced employment with the Respondent on 26th February 2018. The Complainant was a full-time, permanent employee, in receipt of a weekly payment of €663.00. While the Complainant alleged that his employment was terminated by way of resignation on 8th April 2021, the fact and date of dismissal were disputed by the Respondent.

On 29th June 2021, the Complainant referred the present complaints to the Commission. Herein, he alleged that his conditions of work became intolerable to the extent that he was entitled to resign and consider himself to be constructively dismissed. In particular, the Complainant stated that he was subjected to repeated bullying behavior, an oppressive atmosphere and a refusal to provide light duties on foot of medical information. By response, the Respondent denied each of these complaints, stating that the Complainant simply failed to present himself for work and did not bring any of the above-mentioned complaints to the attention of management.

An initial hearing was arranged for this matter on 2nd September 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. In the course of this hearing, the Complainant experienced ongoing and substantial technical difficulties. Following numerous attempts to resolve the same, the hearing had to be abandoned with an agreement that the matter would reconvene in person thereafter. Following the same, the matter was convened for, and finalised on 18th April 2023. 

In advance of the hearing, the Complainant provided a summary of his complaint, with the Respondent issuing a submission in response. The Complainant gave evidence in support of this complaint while a Director of the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross-examination by the opposing side.

At the outset of the hearing, the Respondent raised a preliminary issue as to jurisdiction. Having regard to the nature of the same, this will be considered following a summary of the substantive evidence.

The Complainant was engaged as Fabricator with the Respondent. The nature of the Complainant’s role is that he would be required to use power tools for lengthy periods of time. In early 2021, the use of these power tools began to cause the Complainant significant discomfort, and he subsequently sought medical advice in relation to the same. By report dated 9th April 2021, the Complainant’s GP stated that he is undergoing investigation and treatment for this issue and requested that he placed on light duties that would not involve the use of power tools.

On presenting this report to the Respondent, they stated that the use of power tools was an essential part of this role. In addition to the same, they presented the Complainant with a disclaimer and demanded that he sign the same. This disclaimer stated that the Complainant would take all responsibility for any “consequences” of his return to work. The Complainant protested the signing of this waiver but was informed that he could not attend work without signing the same. Following period of illness absence, the Complainant contacted the Respondent on 5th May 2021, by way of text message. Herein, he stated that the Respondent’s insistence that he sign a waiver had caused him a great degree of stress and that he believe himself to be constructively dismissed. The Complainant then stated that he was in a position whereby he would have to resign and bring the present complaint in the event that he is not permitted to return to work. As the Complainant received no adequate response to the same, he referred the present complaint on 29th June 2021.

In answer to a question the Complainant accepted that he signed for a contract of employment but denied that he had sight of the contract itself. He accepted that his doctor’s report did not state that the was fit for work in April 2021. The Complainant accepted that the was working elsewhere whilst on sick leave from the Respondent, but denied that he had abandoned his role in this regard. He further accepted that he had sight of the Respondent’s correspondence, but stated that he preferred to communicate by text message as this was the method he had used for prior communication. In answer to a further question posed in cross examination, the Complainant submitted that he did in fact resign his employment and referred to the text message of 5th May 2021 in this regard.

The Respondent submitted that the Complainant had not been constructive dismissed, or dismissed at all.

The Director of the Respondent stated that in early April 2021, they became aware that the Complainant had suffered an injury to his wrist that would potentially impact on his ability to use power tools. In the interests of safety, the Complainant was asked not to work with said tools, and to provide a doctor’s certificate to state that he was fit to work. A doctor’s report was provided on 9th April 2021, while this report did state that the Complainant was unable to use power tools and suggested that he “could do other aspects of work”, it did not expressly state that the Complainant was fit for work. On foot of the same, the Respondent was prepared to offer the Complainant light duties in the event that he was prepared to take personal responsibility for the consequences of his return and duly sign a waiver in this regard. The Complainant refused to sign said waiver and left the premises.  On 28th April 2021, the Complainant commenced a period of certified illness absence. On the expiry of this certificate, the Respondent attempted to call the Complainant twice. Following the same, the Respondent wrote to the Complainant on 4th May, enquiring as to the Complainant’s state of health and confirming that he would be provided with light duties on the basis that he provided certification to state that he was fit to work. On 5th May the Complainant issued a text message to the Director of the Respondent alleging that he was forced to sign a waiver, that he felt constructively dismissed and that he was considering resigning his employment and bringing the present complaint. By response, the Director stated that these matters would be considered in correspondence.

On 12th May, the Respondent corresponded with the Complainant, again stating that light duties would be available on his return and that they intended to “make every effort to accommodate you until the issue with the wrist gets sorted”. This correspondence further requests that the Complainant engages with the Respondent constructively regarding this return to work. Following the Complainant’s failure to respond to this correspondence, the Respondent again attempted to contact the Complainant by telephone on 4th & 11th June, in order to confirm his position regarding his return to work.  Thereafter, without any further notice or correspondence, the Respondent received notice of the present complaint.

By submission, the Respondent submitted that the Complainant had not resigned his employment and that he not dismissed. In this regard, the Respondent submitted that the Complainant abandoned his role by securing employment elsewhere whilst on sick leave. Regarding the substantive complaint, the Respondent submitted that the Complainant failed to engage with the Respondent’s internal grievance procedures and failed to engage with the Respondent in any meaningful manner prior to his alleged termination. In such circumstances, they submitted that the Complainant’s application must fail. 

In order to for the substantive matter to be considered, the matter of the alleged termination of employment must be considered. In this regard, Section 1(1) of the Unfair Dismissals Act define dismissal as either,

“…the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee”

Or,

“…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 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.”

In this regard, the sole communication from the Complainant to the Respondent prior to the referral of this complaint is the text message of 5th May. Herein, the Complainant states that he feels that he had been constructively dismissed and felt that he had to “resign from the company and put a complaint to the WRC”.  While the Complainant’s intention from this correspondence is not entirely clear, I note that the communication outlines no further actions to be taken on foot of the same and indicates a finality to his employment. The confusion regarding the same appears to rest with the Complainant’s use on conditional language regarding his resignation, however from a consideration of the agreed sequence of event to this point, it is apparent that by this juncture, the Complainant considered himself to be dismissed and intended to pursue the present complaint.

Having regard to the foregoing, I find that the Complainant terminated his employment by way of resignation on 5th May 2021. In such circumstances, the substantive matter falls to be considered.

In the present case, the Complainant has alleged that his conditions of employment became intolerable to the point whereby he could consider himself constructively dismissed. In this regard, the Complainant referred to the Respondent’s insistence that he sign a waiver in respect on any injury he might suffer on foot of a medical condition. In the alternative, the Respondent submitted that the waiver was offered in the absence of a certificate that expressly stated that the Complainant was fit to work. In addition to the same, they submitted that the Complainant was invited back to work on numerous occasions without mention of said waiver.

In this regard, 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.”

Regarding the instant case, matters seemed to progress with significant incident until such a time as the Complainant complained of an injury to his wrist. At this point, the Respondent requested that the Complainant be certified as fit to work and placed him on light duties until such a time as certification was received. Whilst this is a reasonable response from the Respondent, matters become complicated with their subsequent insistence that the Complainant sigh a waiver in respect of any injury he may suffer whilst working with the injury. Such a position unreasonably requests that the Complainant certify himself in relation to the duties he was required to perform and represented an attempt by the Respondent to absolve themselves of any liability arising from the Complainant’s injury. Unsurprisingly, the Complainant refused to sign said waiver and commenced a period of certified sick leave shortly thereafter.

During the extended period of absence thereafter, the Respondent corresponded with the Complainant on numerous occasions stating that light duties were available for him on his return. In this regard, it appears that the stipulation that the sign the above-mentioned waiver had been removed. On three separate occasions, the Complainant was requested to engage with the Respondent constructively regarding any issue he was experiencing. From the evidence adduced, it is apparent that the Complainant refused to respond to these communications in any meaningful manner, instead sending a single text message indicating that he believed himself to be constructively dismissed and setting out his intention to bring the present complaint.

To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that,

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found 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”

And,

“…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”.

In this regard, the Respondent opened a contract of employment signed by the Complainant. In circumstances whereby this contract referred to a grievance procedure that had not been utilised by the Complainant, they submitted that his complaint must fail. In relation to this point, while the Complainant accepted that he signed the document, he stated that he did not have sight of the body of the same. In this regard, I note that the page signed by the Complainant indicates that he has “read and understood the above terms and conditions”. In such circumstances I find that the terms and condition contained within the contract, including those relating to a grievance process, apply to the Complainant.

Having regard to the sequence of events outlined by the parties, it is apparent that the Complainant did not engage with these procedures prior to resigning his employment. While it is noted that the Respondent did not expressly offer the same during the Complainant’s period of absence, on numerous occasions he was invited back to work and requested to constructively engage with the Respondent in an effort to resolve the issues.

Having regard to the totality of evidence presented, it is apparent that the Respondent initially acted in an unreasonable manner by insisting that the Complainant sign the waiver. However, it is apparent that thereafter they sought to resile from this position and appeared to make genuine efforts to have the Complainant come back to work and to accommodate his injury. In this regard, the Complainant acted in an unreasonable manner by ignoring the Respondent’s correspondence in this regard. In addition to the same, the Complainant’s failure to engage with the Respondent in an effort to resolve his grievance significantly undermines his complaint.

Having regard to the accumulation of foregoing points, I find that the Complainant was not unfairly dismissed and, consequently, his application is not well-founded.

CA-00044832-001 Complaint under the Unfair Dismissals Acts

I find that the Complainant was not unfairly dismissed.

CA-00044832-004 Complaint under the Minimum Notice and Terms of Employment Act

In circumstances whereby the Complainant resigned his employment, I find that his not entitled to a statutory notice payment, and his complaint is not well-founded.

Resignation, Fact of Dismissal, Waiver, Grievance Procedures