UDD2319

1.Appeal of Adjudication Officers Decision No. r-19401-ud-15/EH.

BACKGROUND:

2.The Worker appealed the Decision of theAdjudication Officerto the Labour Court on 3 May 2016 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 4 May 2023. The following is the Determination of the Court:-

DETERMINATION:

This is an appeal by Marek Bartosik (hereafter the Complainant) against an Adjudication Officer’s Decision r-159401-ud-15 given under the Unfair Dismissals Act 1977 to 2001 (the Act) in a claim that he was unfairly constructively dismissed by his former employer, Citi Bus Ltd (hereafter the Respondent). The Adjudication officer dismissed the claim on the basis that the Complainant had not established a case for constructive dismissal.

Background

The Complainant commenced employment with the Respondent on the 24^thMay 2013 and resigned from his position on the 15^thJune 2015.The Complainant submits that he had no option but to resign and is therefore claiming constructive dismissal. The Respondent denies the Complainant was dismissed. This case is linked to MWA/16/4, WTC/16/57 and CD/16/122

Summary of Complainant’s case and evidence

Mr Kelly solicitor for the Complainant submitted that the Complainant had concerns about a number of issues and that he tried to raise these issues with the Respondent. In particular the Complainant felt he might be held liable for not complying with licensing arrangements and other statutory matters. In his sworn evidence to the Court the Complainant stated that problems started a couple of months after he commenced employment. The Respondent was pushing him to do more work and telling him that they were not happy that he was turning up for work late. In particular his supervisor was not happy with him being late for work. The Complainant stated that he believed that he was being asked to drive buses that were not suitable for use. On one occasion he identified an issue with the bus and was asked to drive it to Dublin to have the matter addressed.

In 2014 they were given additional duties of emptying the toilet and preparing the bus for the next trip which were not part of his contract, and his shift was changed to the Ennis Dublin Ennis route. This resulted in a long break in Dublin which he believes should be counted as working time as he was in charge of the money that had been paid for fares on the trip during that period.

On the 6^thFebruary 2015 the Complainant received a written warning for picking up his mobile while he was in the bus as the mobile phone should have been turned off. On the 10^thFebruary he was certified as unfit to work by his GP due to work related stress. Nobody from the Respondent contacted him while he was off sick. However, he contacted the Respondent a number of times with the help of his wife as he was trying to appeal the written warning.

He was ready to return to work on the 26^thMay 2015. By email of 28^thMay 2015, he advised the Respondent his GP had certified him fit to return to work from the 3rd June 2015. He also submitted a letter of the same date where he set out a number of concerns, he had that he required addressed before he returned to work. They were as follows; that he would not carry out work which was incompatible with the rules relating to the licence particularly picking up and dropping passengers in Limerick contrary to the licence, he would refuse to work if the bus is technically inefficient, that his personal mobile would be switched of and that he expected training on using the hand free device that was in the bus, that he disagreed with performing actions associated with the emptying the toilet and that he expected to be assigned a designated parking spot for the bus in Dublin.

On the 29^thMay 2015 the Respondent advised that they were committed to dealing with his issues but that the toilet drop was part of his role, and there was no medical evidence provided by him to say he could not do those duties. The Complainant responded advising that he was fit to resume work and that the fact that he cannot clean the toilets does not mean that he is sick. He sought clarification as to if he was being dismissed because he was refusing to clean the toilets. As he did not receive an immediate reply, he sent the same correspondence the next day to a different manager seeking clarification.

By email of the 30^thMay 2016 Ms Anne Smith on behalf of the Respondent replied advising that he was not being dismissed, that they were merely stating that one of the duties on the route he was on was the toilet drop and clarifying that he was not required to clean the toilet. She went on to say that if he was not in a position to do that task, they would have to look at assigning him to duties on other services where the bus did not have a toilet. The letter offered him a meeting at head office to discuss his concerns and advising that they would provide translation.

By email of 30^thMay the Complainant indicated he was prepared to carry out the toilet duties but wanted the four other issues he had raised addressed. He was invited to a meeting the following week. Further emails were exchanged as the Respondent wanted to use an internal member of staff to translate and the Complainant wanted a external qualified interpreter which the Respondent was not prepared to pay for. By email of the 1^stJune the Complainant advised that he would not be attending the meeting as the Respondent would not pay for the external interpreter. By email of June the 2^ndthe Respondent advised that in order to return to work he had to attend a return-to-work meeting and asked him to advise of a day and time that suited. The letter stated he could bring an interpreter at his own expense if he wanted but that it was not required as the employer had a member of staff who could translate into Polish and from Polish into English.

By email of the 3^rdJune 2015 the Complainant wrote to the Respondent setting out that he wished to meet with them in head office the next day and setting out his terms for attending the meeting which he expected them to accept. The Responded replied advising that a meeting the next day was not possible and suggesting Friday the 5^thin head office at 4.00pm instead. The meeting went ahead at that time, and they went through each of the issues that the Complainant had raised. Minutes of the meeting were circulated, and the Complainant had the opportunity to suggest amendments to same. The minutes were signed by all in attendance.

By email of 7^thJune the Complainant wrote to the Respondent enquiring as to what additional time and payments he would get for doing the toilet drop. The Respondent replied by email of 8^thJune 2015 advising that the duties were part of the consolidated rate of pay that he received and that no additional time was required.

By email of the 13^thJune 2015 the Complainant advised the Respondent that he would never again do the toilet drop and that if his refusal to do this duty meant he could not do the Ennis Dublin Ennis route they should let him know as he was rostered to work the next day. The Respondent by return email advised that they had his shift for the next day (Friday) covered and that they would meet with him on the following Monday, 15^thJune 2015, in the afternoon. By email of the 15^thJune 2015 the Respondent advised the Complainant that they would pay for his return coach journey to the head office and that they would have a translator available. They also indicated that they would require a letter from his doctor stating that he was unable to carry out the toilet drop duties.

By letter of the same date the Complainant wrote to the Respondent to state that he was resigning from his employment with immediate effect as he believed his position had become untenable. He stated that he believed the conduct of the company deemed it reasonable for him to terminate his employment.

A number of issues were put to the Complainant in cross examination, he accepted that prior to February 2015 he had not raised any issues, that the first time he raised his issues was when he was appealing his written warning in respect of a different issue. It was his contention that he did not resign because of the toilet drop issue but accepted that he had sent an email two days before he resigned stating that he would not do the toilet drop. The Complainant also accepted that he had not invoked the grievance procedure but was aware that the company had such a procedure. In respect of the meeting offered by Ms Smith following his letter of the 13^thJune he accepted that they had offered to cover his coach fare but it was his evidence that he chose not to attend.

The Complainant in his written submission contended that returning to work for him after a serious illness was a nightmare for him. He confirmed he took up new employment on the 18^thJune 2015 with a previous employer at a lower rate of pay. It was his submission that the Respondent’s conduct was so unreasonable that his resignation was justified.

Summary of Respondent’s submission and evidence.

Mr O’ Toole on behalf of the Respondent submitted that in January 2015 the Respondent received two complaints from customers in relation to incidents on coaches that the Complainant was driving. The incidents were alleged to have occurred on the 18^thand 24^thJanuary 2015. The Respondent carried out a full investigation and one of the complaints was upheld. The Complainant admitted using his mobile phone while in control of the bus and was issued with a written warning dated 6^thFebruary 2015 which was to remain on his file for twelve months.

On the 10^thFebruary 2015 the Complainant submitted a medical certificate form his GP indicating that he was absent from work through work related stress. Prior to the written warning of 6^thFebruary 2015 there had never been issues with the Complainant, nor had he raised any concerns in respect of any element of his job. On the 28^thMay 2015 the Complainant advised that his GP had certified him fit to return to work from the 3^rdJune 2015.

While absent the Complainant had consented to his appeal of the written warning being heard. During that appeal he raised a number of grievances in relation to his working conditions such as toilet drop, rate of pay, coach parking and breach of licence. He was advised that these issues were separate to the appeal of his written warning and could be dealt with on his return to work.

In his notice of return to work he set out a number of preconditions that he wanted to impose in respect of his return to work. The Respondent sought to meet with the Complainant and the details of same are contained in the email exchanges opened to the Court. At the return-to-work meeting on the 5^thJune 2015 the Respondent sought to address the Complainant’s concerns.

Mr Gerry Lynch Operations Manager in his evidence to the Court stated that in terms of the concerns raised by the Complainant around having to drive buses that had faults, there is a procedure in place for reporting faults. Every bus has a defect sheet/ book which can be filled in by the driver. Every night the duty manager checks the buses and notes any defects listed on the sheets. It is also open to drivers to text in any defects. If a defect is not safety related the bus might be driven back to Dublin in service to have the defect remedied. Drivers would not be asked to drive buses that had safety related defects. Every year all the buses go through the equivalent of an NCT, and they are also audited by the RSA and they have never had a negative report.

The issue that the Complainant had in relation to the licence related to Arthur’s Quay, at the time at certain hours they could not do pickups and /or drops. There were issues where passengers would board the bus in Ennis and when the bus stopped at Arthur’s Quay to pick up passengers they would disembark. The Respondent had done its best to address this is situation by blocking the ticket machine for the four restricted journeys so that tickets from Ennis to Limerick could not be purchased. They also emailed all the drivers on the 14^{th of}May 2015 reminding them of the restrictions on the four restricted journeys. The restrictions have since been lifted.

This was all explained to the Complainant at the return-to-work meeting on the 5th June 2015 and that any breach of a licensing arrangement would fall on the company not the individual driver. In relation to the toilet drop this entailed reversing over a designated manhole in the bus park and then turning a handle on the bus. All the drivers were given instruction on how to do this. There was no requirement for him to clean the toilets. The buses were cleaned by cleaning staff.

Under cross examination Mr Lynch accepted that passengers would alight from the bus at Arthur’s Quay and that the driver could not stop them. He also accepted that any issue arising from licence infringements would fall on the company and not the individual driver. He confirmed that on the 30th May 2015 the Complainant agreed to do the toilet drop and he was provided with gloves which were all that was required.

Mr O’ Toole on behalf of the Respondent stated that at the meeting on the 5th June 2015 it was agreed that the Complainant would not be asked to break any regulations or use his personal mobile phone and that he would receive training on operating the hands-free kit on all buses. It was also confirmed that he would not be asked to drive a bus he classified as technically inefficient and that he would be made aware of suitable coach bays in Dublin city for parking coaches. The Complainant returned to work on the 7^thJune and received his training for use of the hands-free mobile. On the same day the Complainant emailed the Respondent to enquire what additional pay and or time he would receive for doing the toilet drop. By return email he was advise that there was no additional payment or time as it was part of his role.

On Saturday the 13^thJune 2015 the Complainant advised that he would not be able to perform the toilet drop any more. He was requested to attend a meeting on Monday 15^th2015 to discuss same but he refused to attend and submitted his resignation by email on the 15^th. While the Complainant stated in his evidence to the Court that he did not resign because of the toilet drop this was the only issue the Complainant raised with the Respondent following his return to work on the 7th June 2015.

The Respondent submitted that it had fully engaged with the Complainant and sought to address his concerns. The Complainant of his own volition tendered his resignation and no dismissal occurred.

The applicable law

Section 1 of the Act defines constructive dismissal in the following manner.

“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,”

Section 6(1) of the Act states

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Issues for the Court

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 as that term is defined by the Act.

Section 1of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. InWestern Excavating (ECC) Ltd v Sharp[1978] IRL 332 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, then the employee is entitled to treat himself as discharged from any further performance”.

Secondly, there is an additional reasonableness test which may be relied upon as either 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, if so, he is justified in leaving. The Complainant in this case is relying on the reasonableness of the Respondent’s behaviour.

Discussion

The issue for the Court to consider is whether, it was reasonable for the Complainant to terminate his employment because of the Respondent’s conduct. It is not in dispute between the parties that at the meeting on the 5^thJune agreement was reached in respect of the issues raised and that the minutes with some amendments were signed off by everyone at the meeting. Nor is it in dispute that the Respondent had a grievance procedure in place. The Complainant returned to work on the 7^thJune 2015. On that day he enquired as to whether he would receive additional payment for doing the toilet drop and was informed that he would not. On the 13^thJune 2015 he then advised the Respondent that he would not be carrying out that particular duty anymore despite having agreed a week earlier that he would do it. The Respondent then looked to meet with the Complainant to discuss this, but he declined and then tendered his resignation.

The Respondent is this case has at all times engaged with and sought to address the issues raised by the Complainant. The Complainant’s evidence to the Court was that he had decided not to engage with the Respondent and not to attend the meeting on the 15^thJune 2015. No explanation for that decision was forthcoming. In circumstances where the Respondent engaged with the Complainant and met with the Complainant on the issues he raised, it is difficult to conclude that the behaviour of the Respondent was such that the Complainant was justified in leaving.

On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle him to terminate his employment without having sought to ventilate and resolve whatever grievance that he had through the internal procedures. This is all the more so, in circumstances where the Respondent was available and willing to meet with the Complainant.

Determination

Having found that the Respondent’s conduct was not unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal, the Court finds that the Complainant’s employment did not come to an end by way of dismissal.

The Complainant’s complaint is not well founded. The appeal is rejected.

The decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
9 June 2023	Deputy Chairman