UDD2321

1.Appeal of Adjudication Officer Decision No(s) ADJ-00034340 CA-00045293-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 9 December 2022 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 7 June 2023. The following is the Determination of the Court:





DETERMINATION:

Background.

This is an appeal under the Unfair Dismissals Act 1977 by Mr. Shanahan, ‘the Complainant’, of a Decision by an Adjudication Officer, ‘AO’, that he had not been constructively dismissed by Go-Ahead Services (Ireland) Ltd., ‘the Respondent’.

The Complainant was a driver who worked for the Respondent from 1 July 2019 until 12 May 2021.

Summary of Worker arguments.

Initially, the Complainant found management to be approachable and pleasant. However, his relationship gradually deteriorated. Between January and May 2021, there were six incidents that led to work related stress.

In January, the Complainant was contacted by a manager, while he was on a break, regarding complaints about him. Despite informing the manager that he was on a break, he was told that he was being issued with an informal warning. The Complainant requested a proper investigation and contacted a more senior manager. This manager apologised to the Complainant for the interruption of his break and stated that the manager concerned merely wanted an informal chat.

Also in January 2021, the Complainant was given a disproportionate amount of evening shifts. He met with the Operations Manager and it was agreed that he would be put on a regular roster, including up to 4 weeks of lates. However, on return from leave in February, he found that the roster had up to 13 weeks of evening shifts. His attempts to have this addressed by management were unsuccessful.

In March 2021, the Complainant told the Respondent that he would need 24 hours’ notice of changes in any spare duties to be covered. He got no response. When he turned up at 10am on 15 March 2021, the earliest he could turn up after an 11 hour rest period, it turned out that he was 30 minutes late for a duty about which he had not been informed. He brought this to the attention of the Operations Manager, who informed him of the times for his next spare duty and who informed him that he was to ask the supervisor for any other spare duty times. The Complainant was frustrated as it was not his responsibility to chase hours that should be clearly displayed in the workplace.

The Complainant had agreed with his employer to take a paid day off on 17 March 2021. However, on the day he received a telephone call to say that he was expected in work. When he returned the following day, he discovered that he was marked ‘absent’ for 17 March. He had to remind the Asst. Operations Manager that it had been agreed that he could take the day off. Ultimately, he was paid for the day.

The Complainant had to self-isolate due to Covid from 20 March to 1 April 2021. He was told that he was rostered to work on 2 and 3 April 2021. He noted that he was due two rest days and that, in line with the Organisation of Working Time Act, he would return on 5 April 2021, (4 April was a rostered rest day). He got no reply to his mail. When he reported for work on 5 April 2021, he was sent home. He contacted the Operations team straight away but received no contact until the afternoon of 6 April 2021, which meant that he lost this day of work also. He was told that he had failed to come to work on 2 and 3 April and was marked absent. The culmination of events led to the Complainant feeling so stressed that he visited his doctor, who certified him unfit for work with work related stress.

The Complainant’s initial sick absence certificate was up to 21 April. However, he was contacted by a manager on 20 April regarding his return date, which, given the nature of the illness, was inappropriate.

The Complainant raised a formal grievance regarding the above matters plus his concerns regarding career progression and the disregarding of his applications. The grievance was acknowledged and there was no further communication from the Respondent.

On 12 May 2021, the Complainant submitted his resignation and set out his reasons in detail. After the resignation, the Respondent initiated the grievance process without the involvement of the Complainant.

It is the Complainant’s case that the accumulation of minor and major breaches of his contract of employment made a continued employment relationship untenable. The Respondent’s behaviour was so unreasonable that the Complainant lost all trust and confidence in them. He did not take the decision lightly. Had he remained in the employment up to his second anniversary, he would have redeemed a training bond of €1500.

Summary of Respondent arguments.

This is a constructive dismissal case and the onus of proof is on the Complainant, who must also demonstrate that he utilised fully all internal processes prior to resigning.

In relation to the issues raised, the Respondent position is as follows;

The incident referred to regarding the interruption of the Complainant’s break was resolved, he received and accepted an apology.

The Complainant voluntarily agreed to the roster which included a schedule of lates.

Spare duties are notified 7 days in advance on an app and on the company notice-board. The Complainant ignored these and arrived late.

There was some confusion regarding attendance on 17 March but this was resolved and the Complainant was given what he wanted.

The attendance roster is continuous and if it is changed there is an impact on other staff. The Complainant was told to return on 2 April, in accordance with the roster, but he chose to take two rest days. Interestingly, he adhered to the roster by taking 4 April as a rest day.

When the Respondent contacted the Complainant regarding his possible return from sick leave, he objected and submitted a grievance on 27 April but he did not afford the opportunity to the Respondent to deal with it as he resigned on 12 May 2021.

There was no breach of contract and the Complainant cannot rely on any alleged unreasonableness on the part of the Respondent as he did not utilise the process for dealing with his grievance. The Respondent advised that they would deal with the matters raised on his return from sick leave but he resigned before they had the opportunity.

Witness evidence.

Mr. Iain Shanahan.

Mr. Shanahan is the Complainant.

The witness outlined how he had been accommodated by the Respondent by not being on a ‘proper’ roster for domestic reasons up to December 2020/January 2021, in which period he worked a four day week. He described how he facilitated the company by going on the roster with a lot of lates as he understood this to be for four weeks only. When he returned from leave and discovered that he was rostered in this way for 13 weeks, he raised the matter but was told that that if he came off the roster it would not be any better for him. The witness told the Respondent that he was removing the company app from his phone and he was told that it was up to him to ask about his rostered hours.

The witness said that he resigned on 12 May 2021 because a culmination of issues was causing him work related stress. There had been a change in management and issues kept occurring. This included an accusation of being late when he had not been told of his hours. Also on 17 March, he was contacted in the afternoon about attending for work when he was on an agreed day off. He had to produce an earlier email exchange to ensure that he got paid. Then, some days later he had to self isolate just as he was due to take two rest days. At the end of that self isolation he took the rest days due and advised the Respondent when he would return. However, when he returned, he was humiliated and sent home. He was then left in limbo and lost work the following day when he was not contacted until the afternoon. He went to his doctor who certified him as unfit for work due to work related stress.

The witness said that when he was out, he sent the required weekly certificates to his employer. However, he was made apprehensive by an unsolicited contact by a manager regarding his return on the day before he was due back. This was intrusive. The company regulations required him to contact management 20 hours before return but he had been contacted by them 28 hours before his return. This added stress and he went back to his doctor. He also lodged a grievance but two weeks later, having given it a great deal of thought, he decided that it was best for him to resign.

The witness said that the January incident was never resolved properly as he was told, while on his break, that he was getting an informal warning. He was never told what he had done wrong. The issue was about travel times , which were affected by the lock down. He had accepted the apology but it did not make it right.

The witness said that he was so agitated by the accumulation of issues that he gave up a job that he loved and lost out on the training bond.

The witness said that the problems began with a change in management.

With regard to his financial loss, the witness said that his wife gave him a job in her hair salon after his resignation. He found it humiliating as it was like taking a hand-out. He then went back to college to re-train and has now got a job in a different role.

In cross examination, the witness said that he did not finish the grievance process as he suffered from work-related stress . He felt that the investigation could have started while he was on sick leave. When this view was contrasted with his complaint about the Respondent contacting him while on sick leave, the witness said that the two situations were very different.

The witness said that he set out his reasons for resigning in detail in his resignation letter but that he never received any response. He felt disrespected.

The witness said that his resignation was not due to the failure to start an investigation but was due to stress. There was an accumulation of incidents but the straw that broke the situation was being contacted while on sick leave.

The applicable law.

Unfair Dismissals Act.

1.

“dismissal”, in relation to an employee, means—

(a) 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,

(b) 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

Deliberation.

In this case it is not in dispute that the Complainant resigned before utilising the full procedures available to him to examine his grievances.

InBeatty v Bayside SupermarketsUD142/1987, in referring to the need to utilise grievance procedures, the Employment Appeals Tribunal held:-

“The Tribunal considers 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 475/1981. 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 ‘Conway’, it was held that the worker had not acted reasonably by resigning before having substantially utilised the relevant internal procedures. This reasoning has been applied to many such cases since, including the often quoted case ofTravers v MBNA Ltd., UD 720/2006.

On the other hand inAllen v Independent Newspapers (Ireland) Limited[2002] ELR 84 the Employment Appeals Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances. This Court took the same view in the case ofRehab Group v. Annette Roberts UD/19/100on the facts of that case.

Nonetheless, unless there are very obvious good reasons for not doing so, it is the case, as expressed succinctly in ‘Travers’, that it is ‘incumbent for an Appellant to utilise all internal remedies’.

In the instant case, the Respondent has a grievance procedure. The Complainant was aware of the procedure and lodged a complaint under the procedure. However, he resigned before affording the Respondent the opportunity to address his grievance. The Court considers that it was perfectly reasonable for the Respondent to advise the Complainant that they would contact him regarding his complaint when he was well again, not least because part of the complaint related to contact with him by the Respondent while he was on sick leave.

No evidence has been put to the Court that there was any reason why the Complainant might have concluded that the Respondent lacked the ability to address his grievances. It is in the very nature of such grievances that they involve strained relations on some level between employees and employer, which is why it is important for employers to have fair procedures to deal with such complaints. No argument was put to the Court about any alleged inadequacy of the Respondent’s procedures for dealing with such complaints and, on the face of it, the Respondent’s procedures seem to be fairly standard. Likewise, there is nothing in the earlier responses of the Respondent to individual complaints to suggest that the Complainant could have a reasonable basis for a lack of faith in his employer’s willingness to accept and to correct mistakes made by them. In January 2021, a manager had apologised for the way in which the Complainant had been approached and, albeit after some conflict, the Respondent had accepted that a mistake was made regarding his day off on 17 March. These responses do not suggest that this is an employer that cannot be trusted to apply its grievance process in a fair manner.

The Complainant has suggested that he chose not to process his grievance but, rather, to resign due to work-related stress. It is, of course, unfortunate that an employee should become ill due to events at work but it is still incumbent on any such employee to afford his/her employer the opportunity to address concerns before resigning from employment. To do otherwise, in the view of the Court, falls outside a range of reasonable responses and the Court is obliged to conclude that, as with ‘Conway’, the Complainant has not acted reasonably in resigning without having substantially utilised the relevant internal procedures. Accordingly, the Complainant has failed to meet what was described inMcCormack v. Dunne’s Stores UD1421/2008as the ‘high burden of proof in cases of claimed constructive dismissal’.

The appeal must fail.

Determination.

The Decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Tom Geraghty
CO'R	______________________
27 June 2023	Deputy Chairman

'R