Complainant

Respondent

Parties

Carl  Allen

Emerald Airlines Ireland Limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056757-001

19/05/2023

The complainant is claiming he was constructively dismissed.

The complainant starts working for the respondent on 14 March 2022 as a member of the Cabin Crew. He says that following a review meeting he was dismissed because of his timekeeping and attendance. He considered this was unfair as there were good reasons for the timekeeping issues and his absences were certified. He appealed the termination and he was reinstated. When he returned to work on 9 December 2022, he says his supervisor smirked and he felt he was being watched. He carried on working but he still felt he was treated differently and that he was not wanted by the respondent.

Because of this behaviour by the respondent he made the decision to leave. In the first week of January 2023 he applied to two airlines for positions as a Cabin Crew member. He was successful with an Irish based airline and resigned his position with the respondent on 22 January 2023 and requested that his last day of work be 15 March 2023.

He was advised by the Irish based airline on 17 March 2023 that his job offer had been revoked because of a ‘negative reference’. This reference from the respondent stated that he had been involved in disciplinary proceedings which he said he never had been. When requested the respondent changed this part of the reference. However, the Irish based airline said their decision to revoke the offer stood. 

The respondent submits the complainant commenced his employment as a Senior Cabin Crewmember on 14 March 2022. He completed initial training and commenced flying on 9 April 2022. There were a number of occasions of lateness, absences and non-compliance with operating procedures. This was addressed with him verbally by his line manager in line with normal procedures.

On 14 November 2022 the complainant was invited to attend a formal probationary review meeting on 18 November, the letter made reference to concerns regarding his attendance and timekeeping. On 25 November the complainant’s employment was terminated on the basis of not successfully passing his probation for the reasons highlighted.

The complainant appealed this decision and the appeal was heard on 6 December 2022. At the appeal the complainant submitted previously unheard new evidence. On these grounds the appeal was upheld and the complainant was reinstated on 9 December 2022. His probationary period was extended to 10 March 2022. The complainant returned to work and continued in his normal duties. There were no further issues regarding his attendance or timekeeping.

The complainant resigned on 22 January 2023 and requested that his last day be 15 March 2023. On 1 March 2023 the complainant emailed the CEO and HR team with feedback as to his reasons for resigning, with what he described as and objective of “offering an opportunity for reflection” to the respondent. In the email he stated that his concerns led to his seeking employment elsewhere. At no point did he submit a formal grievance or speak to any member of HR or the management team. about his reasons for leaving. As agreed, the complainant left on 15 March 2023.

A reference request was sent to the respondent on 11 January 2023. It was completed and returned on 31 January. The complainant contacted the Head of HR directly on 22 March and advised her that the reference was incorrect as it referred to a disciplinary process. The reference was corrected and resubmitted on 24 March 2023.

The respondent submits this is a complaint of constructive dismissal and they did not fundamentally breach the complainant’s contract and their behaviour was at all times reasonable. It is noted the complainant did not resign with immediate effect and worked out his notice. It is further noted that the complainant did not invoke any internal grievance procedures in relation to the issues raised in his email of 1 March 2023.

The respondent submits there was no dismissal. The complainant resigned and worked his agreed notice period.

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify him terminating his employment. The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

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

(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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[1]. It comprises of two tests, referred to as the “contract” and the “reasonableness” tests. It summarised the “contract test” as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The “reasonableness test” assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment. In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.

In relation to the “reasonableness test” the complainant contends that his treatment during the probation review meeting was unreasonable. He says his absences were certified and some of the lates were caused by the late arrival of transport arranged by the respondent or late schedule changes made by the respondent. The respondent were clear in their letter of 14 November 2022 the meeting was in relation to the complainant’s probationary period and highlighted their concerns about his attendance and timekeeping. Furthermore, they said the complainant had had been made aware of these concerns previously. He was dismissed following the meeting on 18 November. The complainant was given the opportunity to appeal this decision, which he took. He gave the respondent new information regarding the reasons for his absences and mainly on the basis of this information the Head of HR, who heard the appeal, decided to reinstate the complainant, with a three month extension to his probation.

The evidence of both parties is that there were no subsequent incidents before the complainant left. At the hearing the complainant gave evidence that he considered his manager was watching and the respondent had no duty of care towards him. But, when asked, he could no specific incidents.

Despite being reinstated the complainant felt aggrieved by what had happened at the probationary review meeting on 18 November and he chose to seek work elsewhere. He was initially successful and handed in his notice. The offer of a place on a training course was withdrawn when the Irish based airline received a negative reference from the respondent. The reference was returned on 31 January 2023 but the complainant was only advised of the withdrawal on 17 March. His employment with the respondent had finished two days earlier on 15 March 2023.

It is well established that in advancing a claim for constructive dismissal an employee is required to show they had no option in the circumstances of their employment other than to terminate their employment. This requirement places a high burden of proof on an employee to demonstrate they acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve their grievances with their employer.

Having regard to the totality of the evidence adduced, I find that the standard of reasonableness required to substantiate a claim of constructive dismissal has not been met where the Complainant did not raise a grievance and instead chose to seek employment elsewhere. He handed in his resignation on 22 January but only got the formal notice to attend a training course starting on 23 March by letter dated 14 February . The letter is very clear that the offer was subject to a number of conditions, including “providing 2 verifiable and satisfactory references”. The offer was withdrawn because he did not get a satisfactory reference from the respondent. However, the reference was provided after the complainant had handed in his resignation and had no part in his decision to resign.

In relation to the “contract test” the Complainant raised issues around his probationary period. However, he appealed the original decision to terminate his employment and was reinstated when he presented new evidence to the appeal hearing. I therefore conclude the Respondent followed their procedures and was not guilty of conduct which amounted to a significant breach going to the root of the contract of employment, or which demonstrated that the Respondent no longer intended to be bound by one or more of the essential terms of the contract.

Having regard to the two tests identified above, I find that the Complainant has failed to establish that the Respondent’s conduct was so unreasonable or was such that he had no option but to resign or that it was such as to show that it no longer intended to be bound by one or more of the essential terms of the contract. In the circumstances, I find that the Complainant left his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that the complaint cannot succeed.

For the reasons given above, pursuant to Section 8 of the Unfair Dismissals Act 1977, I find that the Complainant left his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977 and the complaint is not well-founded.

Not constructively dismissed