FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : MCGUIRE HAULAGE LIMITED (REPRESENTED BY WARREN PARKES SOLICITORS) - AND - DESMOND O'FARRELL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) DETERMINATION: The Adjudication officer found the complaint to be well founded and awarded the sum of €34,680 in compensation. Background The Complainant commenced employment with the Appellant in 1996 and resigned his employment on 31stJuly 2021. The Complainant contends that the behaviour of the Appellant was so unreasonable as to leave him with no alternative but to resign his employment. The fact of dismissal is in dispute. Summary submission of the Complainant The Complainant’s Union representative submitted that the Complainant worked without incident up until June 2019. He worked for forty hours per week on a third-party site in Wexford. On 21stJune 2019 he went to retrieve his work phone at his workplace while not on duty. He required his phone for work the following day. He had no knowledge that entering his workplace outside of working hours was in breach of any rule. No policy written or verbal to that effect was ever brought to his attention. The Complainant does not own a car and so he asked his partner to drive him to the site on the occasion. On the following day a security employee contracted by the Client company contacted the Client company and relayed that the Complainant had been on site outside of working hours. The Client company then contacted the Appellant company who undertook to investigate and report within an hour. Ultimately the Appellant reported to the Client and asked the Client in an e-mail how they would like the Appellant to proceed. In that e-mail the Appellant stated that “if Des is barred from the” client “site for this serious breach of security can you send us an e-mail confirming this and we will take immediate action”. That e-mail amounted to an invitation by the Appellant to the Client to ban the Complainant from the site. Later that day the Client company advised the Appellant that the Complainant’s card had been de-activated which meant that he could not come back on site from that day. Site bans are not unusual with this client but no policy on such matters exists with the Appellant. The Complainant never had an opportunity to address the Client or to defend himself. When the site ban was imposed the Complainant identified other sites where he could work but his suggestion were rejected by the Appellant. Thereafter the Appellant left the Complainant without work for over two years with no regard for him or his long and dedicated service. No evidence was ever produced to demonstrate that the Appellant made efforts to secure a return to the site for the Complainant. On 24thJune 2019 the Complainant was told by the Appellant that he was suspended indefinitely from the client site. On the same day the Complainant was informed by a representative of the Appellant that he was suspended but that the Appellant would “see if he could sort things out”. On 25thJune 2019 a further conversation took place when the Appellant discussed work in Dublin with the Complainant. The Complainant advised the Appellant on that date that this would not be an option as he had no car and so was without means to travel to Dublin and, similarly, the excessive mileage and longer travelling hours meant that he could not take up work in Dublin. Following engagement with the Appellant by the Complainant’s trade union an investigation was carried out by the Appellant into the events of 21stJune 2019. That investigation found that the complainant had entered the client site outside working hours but that he had not been “expressly told that doing so may be a disciplinary offence” and that other employees have “on occasion acted similarly without their action being noticed or acted upon”. No disciplinary action was initiated by the Appellant and the Complainant was not paid between 24thJune 2019 and his resignation from his employment on 31stJuly 2021.He had not raised a grievance in respect of this matter for the reason that he was unaware of the existence of a grievance procedure in the Appellant employment. The Appellant was obliged to provide work to the Complainant or to address the status of his employment in some way. In fact, the Appellant simply ceased paying wages or providing work to the Complainant while assuring him in June 2020 that he remained an employee whilst failing to make any formal or informal contact with him or his trade union throughout. The trade union submitted that the Appellant had undermined the core of the employment contract and behaved so unreasonably that the Complainant was entitled to regard himself as having been unfairly dismissed by the Appellant. Summary Testimony of the Complainant. The Complainant stated that the investigation of the Appellant had found that he had, on 21stJune 2019, entered upon the Client site after hours but that he had, on that date, been unaware of any issue with respect to attendance at the Client site outside of working hours. The Appellant did offer him work in Dublin, but no instruction was ever given to him to attend for work in Dublin. He was told that he was being offered work in Dublin. He was unable to take up that offer of work because he did not possess a car and in any event the hours involved in travel to Dublin and return each day would have made it impossible to carry out such work. He had put alternatives to the Appellant in June 2019 but they were not considered. The Complainant stated that he was unaware of the existence of a grievance procedure in the Appellant employment. His Trade Union representative received an e-mail from the Appellant on 19thJune 2020 advising him that the Complainant remained on the payroll of the Appellant and that work remained available to him in Dublin. He stated that he heard no more from the Appellant after that date. Summary submission of the Appellant The Complainant was removed from a client’s site following the imposition of a ban by the Client. An investigation of the matter was undertaken by the Appellant and no conclusion was reached that the Complainant had behaved in contravention of a known policy. No disciplinary action was undertaken against the Complainant at any time. The Complainant was offered employment in Dublin following the imposition of a site ban by the Client. The Complainant decided that he could not take up that offer for reasons associated with the location and the fact that he did not possess a car. Having regard to the existence of a site ban on the principal client site in Wexford, the Appellant was not in a position to provide alternative work the Complainant in Wexford or in any location other than Dublin. The Appellant offered alternative work to the Complainant in Dublin, but he declined to accept that work. The Complainant has not demonstrated that his contract has been undermined and or that the Appellant’s behaviour was so unreasonable as to leave him with no option but to resign. On or about 28thNovember 2019 the Complainant sent the relevant statutory form to the Appellant’s payroll department indicating his intention to claim a redundancy lump sum payment following lay-off. The payroll department at that time outlined to the Complainant that he was not in a lay-off situation and was not therefore entitled to claim a redundancy payment. It was also explained to the Complainant at that time that the situation at that time was not a situation where there was no availability of work but rather that the Complainant was unable to access the work due to a Client site ban. The offer of work in Dublin remained extant at that time. The Complainant never instituted a grievance utilising the procedure of the Appellant and never raised a complaint as regards his situation with any member of management. In response to questioning by the Court the Appellant’s representative submitted that the Complainant had remained an employee of the Appellant and that his contract of employment subsisted until the date of his resignation. The Appellant accepted that no instruction had ever issued to the Complainant to work in Dublin and that he was at liberty at all times not to take up an offer of employment in that location. Summary testimony on behalf of the Appellant Evidence of Martin McGuire, a Director of the Appellant Mr McGuire stated that the site ban imposed on the Complainant emanated from the Client and was not instituted at the request or suggestion of the Appellant. The nature of the processes undertaken on the Client site by the Client were such as to create a significant issue in the Client’s view as a result of the appearance on the site outside working hours of the Complainant and his partner on three occasions within an hour. He said that the Complainant was a good and safe driver. He said that the Appellant company had, in 2018, engaged in a transfer of undertakings with another entity as a result of which the Complainant employment transferred to the Appellant. At the point of takeover, it was established that the employees of the other entity did not have a written contract of employment. Such a contract was offered to the Complainant at that time by the Appellant, but he declined to sign that document. The witness was unable to state that the Complainant had possession or sight of the Appellant’s grievance procedure. The witness provided details to the Court of the operation of the Appellant’s other sites in the south-east and stated in evidence that no practical or operational possibility existed of providing work for him on any of those locations or of creating a role for the Complainant on any such site or of displacing other staff so as to accommodate him on such sites. He confirmed when questioned by the Complainant’s representative that no policy was in place in the Appellant employment dealing with site bans imposed on workers by clients. He also stated that he had unsuccessfully pleaded with the Client in this matter to allow the Complainant return to work on the client site. Evidence of Michael O’Brien, Payroll manager of the Appellant. The witness stated that he had never communicated with the Complainant that his employment had been terminated and that he would not have authority to make such an assertion to the Complainant. Relevant law Section 1 of the Act defines constructive dismissal in the following manner:
As 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 within the meaning of the Act. It is trite law that Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal which is unfair within the meaning of the Act. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment the employee would be entitled to regard himself or herself as having been dismissed and that the dismissal was unfair. In the UK Court of Appeal Lord Denning inWestern Excavating (ECC) Ltd v Sharp [1978] IRL 332held that
In addition, it is settled law that the Court, in considering a complaint of constructive dismissal in application of Section 1 of the Act, must consider whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee could not fairly have been expected to put up with it any longer such that he or she was justified in terminating their employment. In this matter it is common case that events occurred on 21stJune 2019 which led to a Client imposing a ban on the Complainant entering upon the client premises. Arising therefrom, the Appellant indicated to the Complainant that he had been suspended from that client site but that the Appellant would attempt to ‘sort the matter out’. From that point forward the Appellant failed to provide the Complainant with work and failed to make wage payments to the Complainant in accordance with his contract of employment or at all. It is common case that the Appellant offered work in Dublin to the Complainant but never instructed him to report for work in that location. On 19thJune 2020, the payroll department of the Appellant asserted to the Complainant that he remained an employee of the Appellant. It is common case that apart from that assertion to the Complainant at that time the Appellant made no contact with the Complainant from November 2019 up to and including the date of the Complainant’s resignation from his employment. No clarity has been provided by the Appellant to the Court as to the status of the Complainant’s contract of employment after 24thJune 2019. At that time the Appellant ceased to provide the Complainant with the fundamental underpinning features of his contract of employment in that it ceased to pay wages to the Complainant, ceased to provide him with work and ceased to engage with the Complainant at all other than to assert to him that he remained in the Appellant’s employment. No submission has been made that the contract of employment of the Complainant makes any provision for a state of affairs where a worker who is party to that contract would not be provided with work, would not be paid wages, would not be laid off and would not be on any form of authorised or unauthorised leave for a period of over two years. The Appellant has submitted that the failure by the Complainant to utilise the grievance procedure of the Appellant is fatal to his complaint. The Complainant, however, has submitted and given evidence to the effect that he was unaware at all material times that the Appellant operated a grievance procedure. It has been contended that, at the time the Appellant through a transfer of undertakings became the employer of the Complainant, a document setting out the terms of a grievance procedure was made available to him. No evidence has been adduced to demonstrate that the Complainant was ever in receipt of a copy of that procedure or that any engagement had taken place with him such that he understood the meaning of any such procedure. The Court notes that a situation persisted following the transfer of undertakings whereby the Complainant did not sign a contract of employment which had been provided or made available to him and that the Appellant took no steps to address that entirely unsatisfactory state of affairs. The evidence of the Complainant that he was not provided with a contract of employment by his employer prior to the transfer to the Appellant has not been contested. Having regard to these matters the Court concludes that, on the balance of probability, the Complainant had no knowledge at any material time of the existence of a grievance procedure in his employment and consequently his failure to engage such a procedure is not fatal to his complaint. In all of the circumstances, the Court concludes that the Appellant, in failing to observe or otherwise address the fundamentals of the contract of employment at all for over two years acted in a manner which served to undermine the root or core of that contract. The Court further finds that the Appellant, in failing to engage at all with the Complainant between December 2019 and 31stJuly 2021 so as to clarify matters relating to the Complainant’s contract of employment, behaved so unreasonably as to leave the Complainant with no alternative but to resign his employment. The Court concludes that the Complainant was constructively dismissed by the Appellant and that the within appeal must fail. Redress In the view of the Court, having regard to the consistent contention of the Appellant that it is unable to provide work to the Complainant, the appropriate redress is compensation for financial loss suffered by him which was attributable to his constructive dismissal. The Employment Appeals Tribunal (EAT) inSheehan v Continental Administration Co Ltd (UD858/199)stated that
In those circumstances and noting the prior earnings of the Complainant which amounted to €680 per week before the Appellant ceased to pay any wages at all to him in June 2019, the Court concludes that the amount of compensation for financial loss suffered attributable to his constructive dismissal should be substantially reduced below the maximum provided for by the Act which in this case, having regard to the earnings of the Appellant, amounts to €70,000 should be reduced to reflect the inadequacy of the measures taken by the Appellant to mitigate those losses. Taking account of these matters, the Court measures the amount of compensation which is just and equitable having regard to all of the circumstances is €20,000. Determination Having found that the Complainant has established that there was a significant breach going to the root of the contract and that the Appellant’s conduct was not unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal, the Court decides that the Complainant’s complaint is well founded. The Court is not satisfied that the Complainant has demonstrated adequate efforts to mitigate his loss and for that reason decides that an award of €20,000 is the amount which is just and equitable in all of the circumstances. The decision of the Adjudication Officer is varied. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
