ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037017
Parties:
| Complainant | Respondent |
Parties | Tomas Murphy | JMC Van Trans Ltd |
Representatives | Appeared In Person | Valerie Morrison, Peninsula Business Services Ireland |
Complaint:
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-00048340-001 | 25/01/2022 |
Date of Adjudication Hearing: 18/10/2022
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
All witnesses gave evidence by affirmation.
This case proceeded by means of a Remote Hearing in accordance with Section 31 of the Civil and Criminal Law (Miscellaneous Provisions) Act, 2020.
Background:
On 25 January 2022, the Complainant, an HGV driver submitted a claim for Constructive Dismissal as provided in Section 1 the Unfair Dismissal Acts. On 13 October 2022, in preparation for hearing, I wrote to the complainant and requested sight of documentation pertaining to his employment such as a contract, table of loss and mitigation and a copy of the letter of resignation.
The Complainant presented as a Lay Litigant.
The Respondent operated a Transport Business and was represented by Peninsula. The Respondent filed a comprehensive submission.
At the conclusion of the hearing, I made a formal request from the parties for: 1 record and dates of new work 2 Solicitors Letter on Insurance 3 Clarification of one day suspension 20 October 2021
These were provided promptly and exchanged for comment. |
Summary of Complainant’s Case:
On 25 January 2022, the Complainant submitted a complaint that he had been obliged to leave his job due to the conduct of his employer. He claimed constructive dismissal. He confirmed that he had been employed as an HGV driver from November 2019 to the date of termination of employment by resignation on 10 January 2022. The weekly gross wage stood at €611.54. He submitted that he was being pursued by the Respondent for repayment of a sum of €10,000, arising from an incident involving his truck during the Covid era. The complainant outlined that his subsequent passage through the activation of the company disciplinary procedure caused him stress and worry. He had been prevented from having his Solicitor present at the workplace disciplinary hearings. Evidence of the complainant by affirmation: The Complainant had a 30-year background in self-employment prior to his commencement at the respondent business. He started well and felt supported at the business. However, there were issues regarding Truck pallets, which his supervisor had raised in Dublin. He stated he was also unhappy with the quality of the inbuilt navigation system. He confirmed that he had received a contract of employment but denied receiving a staff handbook. The Complainant freely acknowledged that he had acquired “tips and scrapes “to the 30ft Truck he drove. He recalled requesting access to an enhanced navigation tool five to 6 months previously, but it was costed at €600 and not made available. The Complainant recalled the context of delivering during the covid pandemic and some of the roadways identified for delivery were just not compatible with the Truck. The Complainant recalled an incident, where he hurt his shoulder when he ended up in a wrong location, having followed the Eircode provided. This was a challenging financial period for him as he was reduced to €203 Occupational Benefit in income per week. The Complainant confirmed that he had departed site during working hours on August 17, 2021, as he was not in a medically fit condition to continue there. He referred to a” tree falling” incident of August 20, 2021, where he got into difficulty in a narrow turn. He thought he could conclude the run and told Mr C this but there was a deficit in the navigation system. The Truck was damaged, and he was astonished at the damage caused. He reflected this in his report. Phone coverage was non-existent. The Complainant gave a chronology on the follow up meetings to this incident, where he was asked if he had been negligent/careless? which he denied. He agreed to accept additional training He received a signed copy of these meetings where he had responded to the allegations. He concluded that the incident could not have been avoided. The Complainant said that he was asked the same questions at a reconvened meeting on September 3, 2021. The outcome of this process was that the complainant had been deemed negligent, received a final written warning, and requested to pay back €10,000. The Complainant submitted that he had queried how the respondent measured negligence but did not receive an answer. He had thought the Appeal process would be conducted by an independent person. Instead, he was asked the same questions over again by Mr A. He returned to work and was removed from the rolling roster. He believed his position within the company was being eroded. He became ill and suffered headaches and stress. From early December 2021, the complainant said he responded to external advice as he was unhappy with how he had been treated. The situation became poisonous and wasn’t doing him any good. He said that he knew he had to take the matter further. Over Christmas, 2021, he decided that the job was “not right for me “. He received calls from the respondent during his sick leave, on whether he could resume work on a part time basis? but this was impossible for him as he could not drive on medical grounds. He did not receive his anticipated Christmas voucher. The complainant considered his options and believed that the best thing to do was leave. He submitted that he had a considerable financial loss through legal fees and loss of wages. He found new work by the conclusion of January.
During cross examination, the complainant confirmed in detail the 6 occurrences of truck incidents during his tenure and provided his analysis of these incidents, one of which he understood he may have been expected to pay for. He was resolute in re-affirming that he had not identified a hazard as referenced in driver handbook during the August incident. He denied negligence and carelessness. He said the tree was on top of the truck and he had to reverse. He understood that he was permitted to decide on how best to proceed. He confirmed that he had been the subject of a dignity at work complaint in February 2021 but justified his approach to his colleague as “his language had been colloquial to Cork”. He was not aware that a customer had said he wasn’t wanted on his premises. He refuted that his behaviour was unacceptable. He said he was assertive, but not aggressive. He denied blocking trucks during the August 17 incident. He denied that his headaches were attributable to the contemporaneous argument. He said that “he had not been in a good place and was medically unfit” for a route, that nobody liked. He validated his decision to return home on that day. The Complainant denied that he was developing an attitude at that point. He said that his stress arose from the way he had been treated.” I wasn’t the one who stopped talking “ The Complainant accepted that he had been informed that securing insurance for him was becoming a difficulty for the respondent. He denied coming into work after the first truck incident “as if nothing happened “. He confirmed that he had decided to resign as he could not live on the stress. He felt persecuted. He confirmed that it was in both parties’ interests that he resigns. He fulfilled his legal obligation by giving notice. He was on holiday when the plan to deduct €200 from his pay was forwarded to him. He confirmed that he was not represented by a Solicitor as the respondent had told him that if he had a solicitor, they would have to have one also. The Complainant contended that he was treated unfairly, and the respondent letter placed him in a “dark period” and had a deep negative impact on him. He accepted that the Respondent had grounds to activate the disciplinary procedure, but they were not entitled in the way it had operated, in effect. When asked why not address this via a grievance? He responded that there was no one to submit a grievance to as the 3 managers were the problem, and he had no confidence in them. He denied that his resignation was voluntary and denied that he had new work arranged before he left. When asked why he had left subsequent work, he repeated on two occasions? ” I could do better “ In closing remarks, the complainant outlined that he had enjoyed the first 12 months of his employment, where he had been treated fairly and understood that he had been trusted. He concluded that he couldn’t talk to Management and was certain that he had been deliberately shunned at work. He said that the working relationship “was not good “ He went on to say that he endured this as long as he could but felt that he had no choice but to leave this “dark and negative “environment. He did not file a response to the company letter seeking a reconsideration as “it would be opening old wounds “He concluded that there was no point in negotiation. He had made his decision to leave. The complainant forwarded a copy of the correspondence requested, records of new work along with the Solicitors letter regarding the insurance cover. The Complainant acknowledged that he had not recalled a period of suspension at hearing. |
Summary of Respondent’s Case:
The Respondent operates a transportation business across Ireland, UK, and Europe. The Respondent confirmed that the complainant had signed a formal contract of employment on June 1, 2020. The Respondent representative, in denying the claim for constructive dismissal, contended that the circumstances surrounding the complainant’s decision to resign his position evolved from an incident involving a truck, driven by the complainant on 20 August 2021. “The vehicle damage incident” Both this occurrence and an occurrence involving the complainant walking off site in August 2021 were investigated by the respondent. Activation of the disciplinary procedure followed by the invocation of a final written warning, upheld on appeal on October 8, 2021. The sanction amounted to: 1. 12-month final written warning 2. A stated expectation that a repayment plan for the damage amounting to €10,000 at the value of €200 per calendar month would commence. An earlier staff relations issue in February/ March 2021, where the complainant was confronted on a dignity at work issue was concluded without disciplinary action, but a rider which stated, “please understand from this letter that you are now in receipt of what we consider to be a reasonable management instruction not to repeat these actions in the future”. From 2 November 2021, the complainant was absent from the workplace on sick leave attributed to “headaches and stress” He did not recommence back to work and resigned from sick leave by email on 3 January 2022. On January 10, 2022, the Respondent, in considering his reported stress offered an opportunity for the complainant to reconsider his decision within 5 days. The Complainant did not alter course and the resignation was accepted. The Respondent had maintained regular contact with the complaint with the intention of accommodating his return to work. On 20 December 2021, Mr A wrote to the complainant seeking his cooperation with a referral to Occupational Health “so that we can make the appropriate recommendations to assist on your return to work “ The Respondent representative has argued that the complainant is not able to satisfy the high burden of proof which accompanies a claim for constructive dismissal. It was the respondent case that that the complainant had not filed a grievance as provided for in the staff handbook. The Respondent had observed a notable decline in the complainant’s behaviour at work. The occurrences of 17 August 2021 involved the complainant leaving the base when requested to change route and 20 August 2021, where the complainant truck became entangled in a tree causing it to collapse onto the truck’s cab. The damage was estimated at €10, 293.72 for repair and carried a moratorium on insurance in the complainant’s case until 20 October 2021. The Respondent endeavoured to manage the complainants sick leave in a supportive fashion. The Complainant left his employment without raising issues of concern regarding harassment through the company grievance procedure. It was the Respondent position that the sequencing of both the incident of insubordination and the truck incident came within a 3-day time frame, warranting a commensurate disciplinary action. The Respondent Representative argued that the company had been placed in an unenviable position of having a stand off in securing insurance cover for his return to driving which necessitated a one-day suspension in October 2021. The Respondent had sought to activate a contractual clause on securing repayment of damage to the truck. The Respondent did not receive a formal grievance regarding this request that he repay the €10k figure. The Company did not activate the recoupment. The Respondent relied on case law Western Excavating (ECC) ltd v Sharpe [1978] ICR 221 (UK) Ranchin v Allianz Worldwide Care SA UDD 1636 (examine the conduct of both parties) Conway v Ulster Bank ltd UDA 474/1981 Debbie Kearns v Silverfern Properties ltd UD 2428/2010 (statement of contract and reasonableness test) Higgins v Donnelly Mirrors ltd UD 104/1979 Ruffley v Board of Management of St Annes School [2017] IESC 33 at Charleton J. para 19 Sheehan v Continental Administration Co ltd UD858/1999 (loss and Mitigation) The Respondent submitted that the complainant has not sustained financial loss as he had succeeded in finding new work, promptly post his termination of employment. Evidence of Mr B, Operations Manager: Mr B outlined the various daily routines during dockets and weekly rosters. He said that rotas had been changed prior to the complainant’s accident. He outlined that both he and Mr C had felt that the complainant had “dropped anchor in productivity “from Spring, 2021 He found that he was not a team player and “everything was an issue “. The complainant was requested to take the west cork route where targets were 1 load and 1 collection. Mr B outlined the chronology of accidents in which the complainant had engaged and described them as “excessive, relative to other drivers” Mr B contended that the complainant had not attempted to help himself on August 20 as it had been open to him to send photos of the lane way or the option of sending in the van. He recalled that the complainant attended medical appointment on August 16. On 17 August, the complainant was requested by Mr C to cover another party of the city. This was a standard request when other drivers were on annual leave. The Complainant refused, said he was not fit to work and went home. This placed the business under pressure. He had assured the complainant that his job was there for him, but felt the complainant was surprised by this information. Mr B confirmed that 60% of employees are currently repaying for damage sustained to vehicles at the business. The Complainant did not avail of the invitation to cross examine Mr B. During clarifications, Mr B confirmed that he had attended the Investigation meeting as note taker but had asked questions of the complainant there. He had no recall of being requested to provide a different navigation driving aid. He denied seismic change directed at the complainant outside of the moderate change of the west Cork division. Evidence of Mr A, General Manager: Mr A confirmed that he presided over the appeal hearing on a de novo basis. He confirmed that it was not in the company’s interests to see the complainant leave. Mr A had concluded that the complainant had not demonstrated a lack of negligence during the August 20 incident. The Company had grappled with the complainant being removed from the group insurance scheme and he had engaged a Solicitors letter to affect his new insurance cover as a driver in the last week of October 2021. Mr A conducted the appeal by letter and had not met with the complainant. He disputed that resignation was the only option open to the complainant “as he could have gone higher “ Mr A conformed that he had not advised the complainant of the revised repayment figure of €7,000 as he was already stressed on the phone. During cross examination, Mr A confirmed that the first time he had heard any mention of a pursuance of an enhanced navigation tool was a month after the “August incident”. He confirmed that the final written warning was to last for 12 months. He was satisfied that he was an independent person in the appeal as he had not been involved previously. He had sought the input of Occupational Health as a neutral party in a bid to return the complainant to work. Mr A confirmed that there was provision for performance improvement plans in the company but distinguished the complainant’s presentation as “behavioural”. In conclusion, the Respondent representative submitted that the complainant had made a conscious decision to move on from the workplace. She submitted that there was no causal link to the resignation and the complainant had not been forced out. The Company had hoped he would return. The Respondent representative pointed to a lack of engagement around the resignation. She contended that the complainant had recourse to legal advice and had not activated a grievance prior to his resignation. The Representative submitted that because of these omissions, the claim for constructive dismissal should fall. The Respondent representative followed up with the requested clarification of the reported suspension in October 2020. In reviewing the complainants stated report of new work, the respondent representative responded by commentary of her perceived start for new work was February 2021.
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Findings and Conclusions:
This case is a claim for Constructive Dismissal, which has been denied by the Respondent. In reaching my decision, I have considered and reflected on the evidence adduced at hearing alongside the written submissions of both parties.
My jurisdiction in a claim for Unfair Dismissal is provided in Section 1 of the Unfair Dismissals Act, 1977
Section 1( 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,
In practical terms, this can amount to a high bar for the complainant to prove.
In this case, the burden of proof rests with the Complainant to demonstrate that his resignation was involuntary.
Lord Denning captured this in Western Excavating (ECC) ltd v Sharp [1978] IRL332.
“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 herself as discharged from any further performance.
In Ireland, the Supreme Court decision in the wrongful dismissal case of Berber v Dunnes Stores, [2009] 20 ELR 61 is of immediate note.
This involved a case of a store manager who claimed that his Crohn’s disease was exacerbated by the actions of his employer.
The Supreme Court considered whether there had been a breach of the implied terms of mutual trust and confidence in contract of employment.?
The court held that:
1 the test is objective
2 both parties conduct must be considered
3 the cumulative effect must be looked at
4 the conduct of the employer must be unreasonable and without proper cause, the effect on the employee judged objectively, reasonably, sensibly to ascertain whether the “employee cannot be expected to put up with it “
In Redmond on Dismissal Law, Des Ryan, BL looked back atthe EAT case of Nicola Coffey v Connect Family Resource Centre ltd UD 1126/2014, where it stated “The bar for constructive dismissal is very high “
There is implied in a contract of employment a mutual obligation that neither the employer nor employee will conduct themselves in a way likely to damage the relationship of confidence and trust between them.
In the instant case, the employment was accepted by the Complainant to have started well only to enter a steady decline shortly after 1 year in. Neither party exhibited a record of performance appraisal. Mr B confirmed in evidence that the complainant that the complainant had demonstrated a dip in performance from Spring 2021. Mr A distinguished the complainant’s presentation as “behavioural”.
The Respondent has been steadfast in argument that the complainant submitted a resignation without exhausting the internal conflict resolution procedures in the first instance. They relied heavily on Conway in that regard.
A decision on whether a constructive dismissal has occurred or not rests on the tests referred to as:
1 Contract Test. This amounts to a significant breach going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.
2 Reasonableness Test. This amounts to a careful analysis of the behaviour and conduct of both parties, to ascertain whether a resignation in the circumstances was a reasonable action.
Representation at the Workplace:
Conflict in a work setting carries a high level of challenge for all parties to manage on any occasion. Navigation tools are usually contained in a staff handbook or a folder of policies or procedures.
The Company handbook presented at hearing is undated, the statement of terms is presented as having been signed in June 2021. The Driver handbook is reflected as having been updated in February 2021.
In this case, the complainant addressed his challenges in the workplace alone in the first instance followed by recourse to legal advice. While he submitted on the papers for the case, that he was denied a Solicitor presence at the workplace hearings which followed the August 2020 events, he did not submit this in evidence. Instead, he said that the Respondent told him if he had a Solicitor in attendance, they would have to match that.
Instead, I have found and promptly discounted a record of the legal advice obtained by the Complainant within the electronic file. This is privileged information and is not an appropriate inclusion to file.
It may have assisted events in this case had the complainant chosen to work with an internal support person as I found the remoteness of legal advice to be just too far away to be influential or effective in active conflict resolution. The Complainant has argued that he has a high legal bill to cover now and has added reference to this in his written submissions in the hope or recovery of these fees.
To clarify, my jurisdiction on redress in this case rests firmly within the provisions of section 7 of the Act. The preferred redress identified by the complainant was compensation. This is arrived at through the measurement of financial loss and has no provision for legal fees, which remain for the parties to discharge themselves.
I was struck by the Complainants account of his own work experience as a long-standing employer. I have found that that long term exposure as a self-governing and autonomous worker did not equip the complainant well in becoming an employee. I found that he analysed a number of occurrences through the eyes of his former role rather than a worker under contract. That is entirely understandable but not helpful to onsite conflict resolution.
I would also mention that the Respondent took an unusual approach in accommodation of a representative at the workplace hearings. The Respondent acknowledged receipt of the complainants Solicitors correspondence in the case, up to and including the basis of the appeal (de novo hearing)
I found that the letter surrounding the Insurance cover to be particularly instructive as the Complainants Solicitor set out on 19 October 2021, that the complainant was open to moving within the business in response to the Insurance cover. He also presented the complainant in a conciliatory light when he set out a preparedness to work within procedures going forward at the business.
Having read the Company handbook live at the moment of termination of employment, I noted that legal representative was not exactly prohibited from attending.
I am mindful of the higher court’s findings on exceptional circumstances in Mc Kelvey v Iarnrod Eireann [2019] IESC and the starting off points to consider legal representation in Burns v Governor of Castlerea Prison.
However, in times of conflict, it can be helpful for both parties to have an onsite advisor/advocate to guide and navigate through procedures in addition to analysing each parties’ responses in their own best interests. It is clear to me that the Respondent was in receipt of external advice throughout this period. This is reflected in the templated letters surrounding the disciplinary procedure.
I would just state that I believe that this was an occasion where collaboration of representatives and managers may have yielded a better outcome for all. I cannot apportion blame to either party outright but find that the complainant’s approach to representation was too remote and that of the respondent was too reticent and cautious. Crucially, I am struck by the revised figure eventually applied to the truck repairs and repayment as €7,000. This was not shared with the complainant. It may not have altered his response, but it ought to have been shared and a response evaluated.
Handbook of Employment:
The Complainant disputed receiving the staff handbook. Mr A confirmed that the complainant had signed acceptance of this booklet in June 2021. He went a step further by submitting that he could not see the complainant refraining from signage.
I am satisfied that a copy of the complainants signature was exhibited at hearing as having sighted the company handbook dated June 2021 .
The document expands of the composition of the grievance procedure mentioned in the statement of terms of employment.
This statement reflects a clause on “damage to JMC Property “
DAMAGE TO JMC PROPERTY Any damage to vehicles, stock, or property (including non-statutory safety equipment) that is the result of your carelessness, negligence or deliberate vandalism will render you liable to pay the full or part of the cost of repair or replacement, within the terms of the Payment of Wages Act. Any loss to us that is the result of your failure to observe rules, procedures, or instruction, or is as a result of your negligent behaviour or your unsatisfactory standards of work, will render you liable to reimburse to us the full or part of the cost of the loss, within the terms of the Payment of Wages Act. In the event of failure to pay, we have in certain circumstances the right to deduct such costs from your pay.
It goes to the root of this case that the Complainant contends that the events of August 17-20, 2021, did not amount to negligence and therefore this clause could not be safely triggered or applied.
The Respondent in return disputed this, by reference to an earlier realisation shared by the complainant that he understood that the time may come where he would be expected to compensate for company property. The Respondent also pointed to a high percentage of staff estimated at over 60% who were actively engaged in and committed to repayment plans for damage to property.
For my part, I accept that the “damage to property “clause formed an express term of the complainant’s contract.
Procedural Pathway, Disciplinary Procedure
I have given this area some extended consideration. The Complainants evidence pointed to a deterioration in his health and well being in the aftermath of the disciplinary process which culminated in his eventual extended sick leave and knock on resignation on January 3, 2022. He did not produce a collaborative medical report to that effect.
The Respondent evidence emphasised a fair and thorough disciplinary procedure. The Respondent case was centred on a completion of a necessary corrective action in the disciplinary hearing which concluded on October 4, 2021. They added that the issue of the company insurers refusing to cover the complainant was resolved in the complainants favour by the end of October 2021. The Respondent then engaged in an active management of sick leave through informal contact, request for certificates and a suggestion referral to Occupational Health.
By then, the complainant had removed himself from the workplace on sick leave for mixed physical and stress reasons.
However, I have concluded that the passageway through the disciplinary procedure devastated the complainant.
I had concerns that the complainant’s physical health was also suffering. He had been for an eye assessment the day before the events of August 17, 2021. However, the complainant did not advance any documentary expansion on these inferences outside standard medical certificates. These were not probative. I gained some insight into the depth of his concern for his health in the November 2021 record of engagement.
I found compassion and a genuine concern for the complainant in the record Mr As informal support telephone dated 22 November 2021. By then on the evidence of Mr A, the complainant exhibited a distance from his work and was not of a mind to try a return part time. An earlier orthopaedic report in October 2021, did not place a return to work out of reach of the complainant.
Having listened carefully to both parties, I understand that the complainant faced a block in accepting that he owed the company money for something that he honestly believed did not match the criteria linked to such a payment in the contract. He was unable to focus on the “full or in part payment clause “so as to prompt a negotiated settlement.
I asked the complainant whether his resignation was a strategic response to addressing the request for payment? He said it was not a factor.
He spoke honestly when he said that he had been advised by his external advisors that he should leave employment from early December 2021 onwards and he took that advice. Documentary evidence received post hearing placed his finding new work, albeit short lived some three weeks post his termination.
I accept that the complainant had a genuine belief that he has been wronged at the business. However, he has not balanced this by an accompanying analysis of the workplace documents that bound the parties together in employment.
By this I mean the handbook and drivers manual and primarily the statement of terms of employment, which appeared to issue over 2 years after the commencement of employment.
For my part, I found a certain looseness in the procedural framework surrounding the disciplinary hearing adopted by the Respondent. Mr B was present at the disciplinary hearing as a notetaker yet is recorded as having asked questions. Two of the Respondent Managers were directly involved in managing the complainant on the line. I found their presence in a disciplinary hearing to be short of best practice.
I am strengthened in my view of this when I considered that there was no evidence of a record of management of the August 17 occurrence of walk out on the complainants return to work. The events of August 20 followed quickly in the aftermath and the matter was elevated to investigation rather than a manager: worker engagement in the first instance.
My attention was drawn to the resumed Disciplinary Hearing of September 20, 2021. The notes of this meeting incorporated a revised managerial direction which apportioned blame on the complainant a number of days prior to the eventual findings of the disciplinary process. This was a veritable” cart before the horse scenario” and constituted a procedural unfairness of prejudgement, for me.
I was also dissatisfied by the inclusion of the repayment as a rider in the outcome of the disciplinary process. For me, at least it read as a double punishment and ought to have been addressed in a more streamlined manner. I fully accept that the Respondent did seek to open up negotiations on a repayment plan in full or in part and was vetoed in full by the complainant. It was of interest to me that the quotation for repairs was relied on to demonstrate loss rather than an invoice for works completion. The latter may well have had more meaning and relevance for the complainant.
However, my greatest unease arose at the conclusion of the appeal process. I can appreciate that Mr A engaged in a de nova hearing. However, I was troubled by the final paragraph in the letter.
“… the company Is not required to measure how we determine an act of negligence as we have a clear policy in place that indicates staff may be liable for payment. A precedent has been set in the past with other members of staff that payment has been recovered for damages no matter the amount “
This was in response to the complainant’s contention that there was no contractual responsibility or obligation to repay the damages to the company vehicle as the finding of negligence was challenged through the Solicitors letter of appeal.
I have found that the Respondent did not address this point of appeal fairly. There was an onus on the respondent to make a finding of either negligence, careless ness, or deliberate vandalism on the balance of probabilities.
However, the appeal outcome was presented as a final decision. On a careful review of the Company Handbook on Disciplinary procedure, I find it necessary to catalogue an extract from Section 14.11 Disciplinary Appeal Procedure
….
Should you be dissatisfied with the outcome of the appeal, you may appeal in writing only to the Management Director. The decision of the Managing Director, having considered written submissions and supporting documents from both parties I final within this process and may dismiss, reduce, or increase the severity of the earlier decision.
It is fair to reflect that this matter was not raised at hearing by the complainant to allow a response from the respondent. However, in my consideration of the behaviour of both parties during this case where both parties say that they were in possession of the disciplinary procedure during the hearing. I am left slightly bewildered why this “Mercy Appeal “was not offered by the Respondent or actioned by the Complainant. It may have saved the employment in this case, but we will never know.
When Mr A addressed the hearing in his evidence, he did emphasise that he believed that the complainant had the option of going higher in terms of a grievance. However, he did not express the same reflection in terms of the disciplinary hearing.
The Company Handbook presented at hearing was undated but was underwritten by both Company Directors. I must accept that it was the live and presiding document at the time of a disciplinary hearing.
The Complainant was at work throughout this process and responsive to interparty documentation.
I must conclude that this constituted a procedural unfairness towards the complainant, but it also constitutes a road less travelled for the complainant, to his own detriment.
I found the approach adopted by the Respondent surrounding the insurance cover remarked as a suspension to be simply careless in the presence of a co locational contractual clause on “layoff “
In a Labour Court case of TE Laboratories ltd v Jakub Mikolajczyk, UDD 1930, Deputy Chairman, Tom Geraghty determined that a decision to suspend the complainant in the case required consideration.
He distinguished the circumstances from those in the seminal case of Bank of Ireland v Reilly [2015] IEHC 241 “ought to be seen as a measure designed to facilitate the proper conduct of the investigation “The Court was highly critical of the approach adopted by the Respondent in that case.
The Court struggles to understand how it can be justified to suspend an employee on one stated basis while subsequently advising the person who conducted the later appeal that there was a second reason, which was never put to the complainant ……….
In the instant case, the Complainant had no recollection of being suspended as his driving rights had been restored at the business and the threat of dismissal abated. However, the one-day suspension was poorly worded and a cardinal error. Coming so swiftly in the aftermath of an extended disciplinary process a notification that his dismissal may once again be under consideration was insensitive and showed a lack of empathy. The Complainants absence from the business followed.
In the TE Laboratories case, the Labour Court went on to catalogue a number of clearly unfair procedural deficiencies which amounted to a finding of a breach of the reasonableness test by the respondent and therefore a constructive dismissal. The Court endorsed the decision taken by the Respondent in that case to appoint an external team.
In the Murray v Rockabill Shellfish ltd [2012] 23 ELR 331, the EAT held that an employee as Manager of a shellfish processing plant had been constructively dismissed as the respondent was guilty of breach of contract and failure to engage with the complainant to resolve his grievances.
The circumstances of this case are disturbing and involved marked alteration to the products, belittlement in front of staff, cessation of sick pay and a substantial pay cut. However, the finding of constructive dismissal captured a lack of engagement by the respondent towards the complainants’ stated grievances.
The Resignation:
The Complainant did not return to work after 19 October 2021 and raised his resignation by email on January 3, 2022.
During this time, the Respondent engaged in a pro-active management of his sick leave by seeking certs, cooperation in an occupational health appointment and an informal engagement on the complainant’s health at the end of November 2021.
During this time also, the complainant was requested to engage in a repayment plan. There was no agreement on how to proceed here.
I have taken some note of the EAT case of
Maureen Keane v Western Health Board UD 940/88
Determining that the claimant had been constructively dismissed, the EAT found that the claimant had genuinely believed that the difficulties and stress she was experiencing had left her with no alternative but to resign. It found that the claimant's resignation could not be deemed a fully informed decision to terminate her contract of employment, as it was tainted by the claimant's confused state of mind at the time, coupled with her obvious lack of knowledge of the grievance procedure. It noted that as soon as the claimant had had the benefit of informed advice as to the alternative remedies open to her, she had conveyed to the respondent notice of her desire to revoke her resignation.
Regarding the respondent's policy to never reconsider an employee's resignation, the EAT found that this was unreasonable.
In that case, the complainant was refused an opportunity in the cold light of day to recant her resignation. The EAT found this unreasonable.
I have reflected on the complainant’s evidence and find that he had decided to leave his job in December 2021. This was an informed decision and distinguished from Keane.
The actions of the Respondent in terms of reaching out to the complainant during this time were proactive and reasonable. However, the complainant had decided that the ship had sailed on his employment and there was no way back. I accept that he resigned for his wellbeing, however, I must decide whether his resignation was involuntary and brought about by the actions of his employer.
I have taken some guidance from the Labour Court in
Mr O v An Employer No 2 [2005] ELR 132
Captured by Tara Murphy BL in the recent IELJ 2022 19(1) on That’s it, I quit, A review of significant Irish case law on disputed dismissals, when she said:
“The Labour Court indicated that it had attached significance to the respondent's decision to accept the complainant's resignation there and then. In evidence, the respondent had admitted that the complainant's resignation had had the appearance of an impulsive or irrational act. They had known the nature of the complainant's illness and of his emotional vulnerability. In the Labour Court's view, a reasonable employer would have paused before accepting a resignation in those circumstances and might have contacted the employee later to ascertain the reason for the resignation or to provide an opportunity for the employee to recant.”
In Mr O the Labour Court forgave the omission to activate the grievance procedure in a case of discriminatory dismissal.
There are a number of factors which, in the exceptional circumstances of this case, excuse the complainant's failure to formally complain to the respondent before resigning. First, the respondent did not have a grievance procedure in place. Secondly, the offending conduct was perpetrated by the principals of the respondent who knew or ought to have known what its likely impact would be on the complainant having regard to his temperament and mental fortitude. Thirdly, the complainant condition was such as to require him to avoid confrontational or stressful situations and this was known or ought to have been known to the respondent.
In that case, the Respondent did not operate a grievance procedure. However, the respondent was in possession of the complainant’s medical diagnosis and reportage in the case.
In the instant case , the Respondent behaved responsibly and reasonably when they reached out to the Complainant on foot of his termination. They sought to get him to engage when they said:
I am now writing to ask whether this is really what you want to do. If you wish to reconsider your decision, please contact me within the next five days, namely by 14.01.22 at the latest. As you are out with stress, we would be keen to have a discussion with you to see what is causing you stress and to see if we can support in any way. Please let me know if you wish to meet to discuss further. If you decide not to retract your resignation, then we will respect your wishes and process the termination of your employment and forward any monies which may be outstanding.
This went over and above the findings in Millet v Shinkwin relied on by the Respondent, where an employer Is not obliged to accept a recanting of a resignation.
The Complainant has confirmed in evidence that he was not prepared to open “old wounds “and he did not engage in the invitation extended for occupational health or in terms of his resignation.
I have some difficulty accepting the complainants evidence where he discounted the presence of the 3 Managers on seeking to resolve his issues . I am clear that two higher Directors were available as signatories in the company handbook .
I am struck by the complainants clear understanding that he was cleared to drive at the business from October 2021. Yet, he did not take steps to realise that activity.
I have identified a number of Respondent procedural deficits in my findings. I accept that the Complainant shrunk from the business from October 2021 through sick leave and a disenchantment with his employer. However, I must also conclude that I find that he has not satisfied either the contract test or the reasonableness test on this occasion.
I find that he made a clear decision to resign his position in December 2021 on foot of his support’s advice. He was not prepared to engage further in an employment, where he felt wronged. He was aggrieved at not receiving his Christmas bonus, which demonstrates for me that he was in tune with the respondent business at that time.
I find that his approach was premature in that regard. He left employment without exploring the options offered by the Respondent to aid his return to work and without activating a grievance, which was open to him.
I find that the complainant made a conscious decision to leave the employment and he honestly believed that he was no longer a fit for the business and found new work some 3 weeks post resignation, albeit short lived.
I find that he missed an opportunity to resolve his differences with the company when he was invited back to discuss his resignation. I cannot accept that it was too late.
He was not subjected to an arbitrary wage deduction to address the damage to the vehicle. The amount was never deducted or settled.
Taking account of all the circumstances of the case, I find that the complainant has not reached the high bar necessary to prove a constructive dismissal and while I have identified procedural breaches in the conduct of the disciplinary hearing. I have found that the follow on approach adopted by the respondent was unreasonably rejected by the Complainant .
I find that his decision to resign was voluntary.
The Complainant was not unfairly dismissed in accordance with Section 1(b) of the Act.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found that the complainant has not reached the high bar necessary to prove a constructive dismissal. He was not constructively dismissed.
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Dated: 06/03/2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Claim for Constructive Dismissal |