Complainant

Respondent

Parties

Marco  Meli

Swissport

Representatives

Barry Crushell Crushell & Co Solicitors

Gail O’Dowd-Maher, IBEC

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-00051478-001

01/07/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and four witnesses for the respondent undertook to give their evidence under affirmation.  All witnesses were cross examined by the opposing party to the proceedings.

The complainant submitted that he started employment as a ramp agent\team leader with the respondent on 19 February 2013. He was initially paid a salary of €30,000 which rose to €33,000. His employment with the complainant was terminated on 16 May 2022.

The complainant contends that there was a repudiatory breach of contract on the part of the respondent when they failed to provide him with an adequate amount of work or to explain why he was not selected to return to full duties. He was placed on layoff because of the COVID-19 pandemic and repeatedly sought clarification as to when he could return to full-time duties. The respondent did not provide any such assurances.

Even after the most severe impacts of the pandemic ceased the respondent failed to provide the complainant with the necessary clarification, he sought in order to return to work. The respondent did offer the complainant reduced hours however he would have suffered severe financial difficulties because of not being able to avail of social welfare protections.

Oral Evidence:

In his evidence the complainant stated that he worked for over 8 years as a ramp agent moving on to team leader, he noted that he had a clean record. He noted that his union knew very little about the layoff and that the selection for layoff was never explained to him. He noted the return-to-work letter and noted that there was a moratorium on seeking voluntary redundancies.  He stated that he was only willing to go back to work in relation to a 40-hour week as it was hard to survive on 30 hours. He noted he was offered a return to full hours after several months. He noted the disciplinary process was instituted in respect of his being absent without leave.  He stated that he was not feeling safe about the return to work. He said he received nothing regarding the disciplinary process. He said he sought redundancy but received a refusal and it was noted that there was a job there for 40 hours.

He stated that he had received no information from the person dealing with the grievance process and he was not aware of how it was proceeding.  He resigned in May 2022 citing that he had no trust in the company and believes things could be managed in a different way but that his confidence was gone. After he submitted his resignation letter, he had a meeting with a colleague, but he was still not feeling confident about the company, and he thought that he would get the meeting notes automatically. He also noted that he had sent numerous emails regarding his pay. He noted that when he was laid off, he re-read his contract, but he didn't seem to place much value in experience or knowledge and that he was treated just like any other employee.

Under cross examination, it was noted that layoff was provided for in his contract and that there was a company and union agreement on layoff and short time working. It was put to him that he never took a grievance or invoked the grievance procedure. He noted that he doesn't feel that he should have been treated differently to anybody else but that he didn't raise any additional concerns through a grievance.  It was put to him that all safety recommendations were in place at the time. It was also put to him that all issues raised were resolved. He stated that he felt there was a threat on the part of the company when they told him that they would have to inform Social Welfare that he was going back to work.

Under redirection the complainant confirmed that he got no calls from the company regarding his inquiry about redundancy which was refused as full-time work was available.

As regards mitigation of loss, the complainant confirmed that he got a new job in the first week of July 2022 but clarified that it may have been the 13th of July when he started.

The respondent submitted that due to the national public health restrictions on international travel, and the unpredictability from week to week of the restrictions placed upon the aviation industry, it placed 546 employees across 3 airports on layoff with a view to returning them to full-time hours at the earliest possible time. The complainant was one of the employees placed on layoff. He was then offered reduced hours and claimed that he would suffer severe financial consequences and on 13 May 2022, he handed in his resignation.

The respondent submitted that the definition of an unfair dismissal in the Act places a burden on an employee to demonstrate either that he was entitled to terminate his contract by virtue of a demonstrated breach of contract on the part of the employer, or that the employer acted so unreasonably as to make continuation of the employment intolerable and therefore it was reasonable for the employee to resign. The respondent’s position is that neither of these criteria were met.

The respondent submitted that it had no option but to react to the sudden and unforeseen circumstances due to the COVID pandemic and the resulting regulatory environment. It placed 546 employees on layoff in March and sent a letter to all its employees on 17 of April 2020 advising them of the process to follow with any issue regarding the pandemic payment. The respondent issued a further update on 7 May and again on 22 June 2020.

On 24 June 2020 the respondent sent a letter to all employees relaying the fact that the company may be forced to make difficult choices in the coming weeks but assured its employees that it was engaging in constructive dialogue with the union.

On 18 June 2021, the respondent wrote to the complainant informing him that his layoff will cease on 27 June and that they had made a number of attempts to contact him by phone and had not been able to get through to him. He was offered a return to work on a reduced hours basis of 30 hours per week “in line with business requirements”. It was also noted that failure to return to work may lead to disciplinary action. The complainant did not return to work as requested and on 30 June the respondent again wrote to him requiring him to return to work on the 12th of July.

The respondent submitted that the complainant wrote to them on 2 July stating that the situation was causing him financial hardship and he had reviewed his contract of employment and noted there was an expectation that he would work at least 40 hours per week. It submitted that the complainant noted that while he was not refusing to return to work he would only do so if offered 40 hours per week in accordance with his contract.

In a letter of 8 July, the respondent informed the complainant that his contract of employment provides for layoff and that they could not give any assurances at this time that full time hours would be returned, however, it was noted that he will work a minimum of 30 hours per week. The complainant continued to refuse to return to work and sought an update regarding redundancy from the respondent on 30 July 2021. The company informed him that there were no forms available but that they had noted his name as an expression of interest.

The respondent submitted that the complainant continued to refuse to return to work. On 13 September he emailed the respondent to indicate that he would only return if he was offered 40 hours per week. In response the respondent informed him by letter of 21 September that if he did not return to work by 27 September, failure to do so may lead to disciplinary action. He continued to insist that he could not return to work for less than full-time hours. On 6 October he stated that if the company is unable to return him to full time hours, he's giving notice that he is claiming redundancy. Subsequent to this the respondent indicated that it was offering to return him to work on the basis of full contracted hours with effect from 10 November.

The respondent had also written to the complainant on 7 October informing him that his continued refusal to return to work was being treated as unauthorised absence and that ‘failure to follow a legitimate instruction’ was now being referred to investigation under the disciplinary code. On 15 November the respondent wrote to the complainant to see if he was now willing to return to work. His response was that he felt highly uncomfortable going back to work while the disciplinary procedure was ongoing.  An investigation meeting was organised and the recommendation was that  the matter proceed to a disciplinary hearing.

The respondent submitted that the company was in upheaval at the time because of the pandemic and there were also changes in HR which led to the disciplinary processes being dropped against employees. The non-continuation of the process was confirmed to the complainant in March 2022.

The respondent submitted that on 30 March the complainant confirmed to the company that he would be returning to work on 1 April and the company responded by saying that the disciplinary matter was closed and there will be no further meetings or actions in that regard. The respondent indicated to the complainant that he needed to undergo training in preparation for his return and he confirmed he would be attending the training on 16 May 2022 but then in an e-mail to the company on 13 May provided his resignation with immediate effect. The company responded asking whether he would like to arrange a meeting before deciding to terminate his employment and the meeting was held on 2 June. The complainant was then provided with a few days to consider what was discussed in the meeting and time to reflect on his resignation.  However, on 16 June 2022 he confirmed that he wanted to proceed with his resignation from the business.

The respondent submitted that at all times it operated within the terms of the contract of employment and that no contractual violation occurred. Furthermore, the respondent indicated that it did not act unreasonably, and that the complainant did not exhaust internal grievance procedures before submitting his resignation.

Oral Evidence:

Witness #1: the HR business partner

The witness noted that at the time of the COVID pandemic, the company was experiencing financial hardship and that anyone who was not put on layoff, was on short time hours equal to the pandemic unemployment payment (the PUP).  As regards queries as to the safety of the workplace for return, she noted that covid protocols were in place, PPE was in use, and there was a pod system in place for people returning to work. She noted that training was provided to employees prior to their return to work.

Under cross examination she noted that HR was engaging with people. She noted that there was no consistency in relation to the timeline of calls to people. She confirmed that HR were considered to be part of the management team although some staff were laid off and subsequently brought back. She confirmed that the respondent lost nearly 60% of its business.

Witness #2: the HR advisor

The witness confirmed that she had a meeting with the complainant involving re-considering his resignation.  She noted that he considered raising formal grievances and she explained the grievance system in place to him. She noted that there was a full-time contract available to him and followed up the meeting with a summary of what had been discussed.

Under cross examination she confirmed that she was not involved in the disciplinary process, and she could not remember specific details of any issues that the complainant had discussed raising by way of a grievance. She couldn't recall if he was given a copy of the grievance policy or not.

Witness #3: the airside manager

The witness confirmed that 500 plus people were put on layoff, from her perspective 210 of the 240 staff were put on layoff.  She confirmed that the airport had closed the baggage halls down. She noted that they were only cargo planes for 8 to 10 months thereafter and there was a requirement to bring some people back. She noted that they rang everyone twice and if there was no answer followed it up with an e-mail. Under cross examination it was confirmed that 210 were laid off and subsequently 110 were working, nearly all had returned from layoff. She confirmed that there was no formal selection policy as they all thought it was going to be a short-term thing. It was noted that they were trying to guard people's take home pay and they used up holidays first. She noted that two days later the plan changed, and ramp and cargo operations were retained for cargo. She noted that people taken back were the ones who had the skill set required at that time. She noted that the two other locations in Cork and Shannon were dealt with differently. She confirmed that the 110 who came back where a complete mix of people. She confirmed that the complainant could have been retrained but he never came back.

Witness #4: the baggage hold manager

The witness noted that he was put on layoff too. He noted that he requested the complainant to return but got no response.  He stated that the complainant was written to on at least two separate dates and failed to return to work and arising from this an investigation process was started. The witness noted that he carried out the investigation and noted that the complainant indicated he was not comfortable coming back until the whole process was closed off. He confirmed that the complainant had been offered to return to work on a 30-hour basis.

Under cross examination the witness noted that he had only issued one invite letter to the complainant and that there was only one investigation for the three invite letters indicating return to work dates that had been sent out. He confirmed that the complainant did not want to return to work and was told that he could come back to work and appeal the requirement to return. He confirmed that no outcome letter was provided to the complainant regarding the disciplinary process.

The complainant was put on layoff as a response to the Covid pandemic.  This was provided for in his contract and was undertaken in accordance with the directions of the Irish government. Although this was an evolving situation the respondent contacted its employees several times to keep them abreast of any developments. The respondent recalled a number of employees from layoff but put them on short time work. This was also to address the ongoing situation regards the COVID pandemic. It was not in a position to bring all of its employees back on a full-time basis and the complainant repeatedly refused to return on anything less than a full-time basis.

The respondent tried on a number of occasions to get the complainant to return to work however he continually refused. Eventually he was summoned back to work and given fixed dates to return to work. When he did not do so the respondent considered him absent without leave and preceded to deal with matters under their disciplinary code, starting an investigation which resulted in a recommendation to move to the disciplinary procedure. Ultimately it did not proceed with disciplinary measures against the complainant.

The complainant was offered a return to work on the basis of full-time hours but declined to do so. Although in his evidence he cited concerns as regards the safety of returning to the workplace, he never committed these concerns to writing in the form of a grievance.  The respondent engaged with the staff union and each step it took was in accordance with agreements with the union and, as far as I can tell, in accordance with the gradual return to work advocated as prudent by the authorities.

Although, the term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977, 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 respondent argued that in light of the definitions contained in the Act, and the established principles adopted by the Tribunal and the Courts, a burden exists on a complainant to demonstrate that either he is entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of his employer, or he is entitled to terminate his contract when he has demonstrated that his employer had acted so unreasonably as to make the continuation of the employment intolerable.  It argued that then, and only then, is it reasonable for a complainant to resign.

The question for me to consider is whether it was reasonable for the complainant to consider that the respondent had breached its contractual obligations, or in the alternative whether the respondent had engaged in behaviour that was so unreasonable that it left him with no option other than to resign.

The respondent submitted that at all times it operated within the terms of the contract of employment between the parties and that no contractual violation occurred. The respondent noted the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank, (UD 474/1981) to confirm its position, in that it did not violate any term of the contract or organisation policies, express or otherwise. The respondent suggested that its actions were in no manner “a repudiation of the contract of employment” and, that the complainant has not demonstrated “that the respondent no longer intended to be bound by the contract”. The respondent contended that no change occurred in the contract to make it “so radically different from what was before”. 

The respondent submitted that the complainant’s referral primarily relates to his being placed on lay-off and the “failure to provide him with an adequate amount of work” which he claims is a “repudiatory breach of contract”. The respondent argued that the complainant was placed on lay-off as is permissible within his terms and conditions of employment: clause 12 of his contract states: “The Company reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in employment. You will receive as much notice as is reasonably possible prior to such lay off or short time. You will not be paid during the lay-off period. You will be paid for hours actually worked during periods of short-time”

Having regard to the foregoing, I am satisfied that the complainant has not established facts from which the ‘contractual test’ may be relied to base his constructive dismissal upon; I note that the contract of employment makes provision for layoff and makes provision for short term employment where the need arises. Furthermore, in the circumstances of the pandemic where certain courses of action were imposed upon employers throughout the country, I am satisfied that the respondent has not breached its contractual obligations to the complainant.

In respect of the reasonableness test, the respondent outlined that from its perspective there exist two interwoven factors to be considered: (a) did the employer act unreasonably so as to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures.  To support this contention, the respondent cited the case of McCormack v Dunnes Stores, (UD 1421/2008), where the Tribunal stated that

“the notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve h(is) grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The respondent suggested that it always acted reasonably and fairly, in accordance with its policies, best practice, and appropriate conduct.  It suggested that it has communicated with its employees informing them of the situation in which the company found themselves due to the unexpected, unforeseen and sudden downturn in the aviation industry.  The respondent noted that the complainant had access as both a union member and an employee to its grievance procedure.  However, he never lodged a grievance prior to submitting his resignation.

The respondent submitted that the complainant did not act reasonably in resigning his employment as he had not previously “substantially utilised the grievance procedure to attempt to remedy h(is) complaints” as per Conway v Ulster Bank.  The respondent noted that the obligation to exhaust internal grievance procedures extends even in situations whereby there exists a purported breach of contract.  The respondent suggested that it was insufficient for an employee to claim to have been constructively dismissed without utilising and exhausting grievance procedures.

As regards the respondent’s behaviour, I am satisfied that the respondent acted reasonably by instituting disciplinary proceedings against the complainant when he failed to return following repeated requests to do so. I do not believe that their behaviour was unreasonable in all the circumstances surrounding their direction to the complainant to return to work. Thereafter the complainant was requested to return to work on a full-time basis, it was indicated to him that the respondent was not going to be pursuing any disciplinary action against him, and they asked for him to attend training before returning to the workplace. He initially agreed to do so but then handed in his resignation. 

In the circumstances I find that the respondent acted reasonably at all times, and in fact the complainant was the one who did not act in a reasonable fashion. It was open to him to take up the offer of full-time employment, to return to work for the training, and if he was unsatisfied as to the safety aspects of the training or the return to work to raise matters with the respondent.   He did not do so.  He did not take a grievance or seek to exhaust any internal complaint procedures.  It is generally accepted that employees who claim that they have been constructively dismissed must show that they have substantially utilised the grievance procedure before resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare.

In Redmond on Dismissal Law (2017) at paragraph 19.14, Desmond Ryan aptly describes the onus on employees in this respect -

“There is something of a mirror image between ordinary dismissal and constructive dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employee resignations.  Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981.  In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’”

Arising from this failure to engage with the respondent, I find that the complainant was not entitled to consider that the respondent acted unreasonably, such as to leave him only with the option of resignation.  The complainant resigned from his employment and no dismissal took place.  Therefore, I find that he was not unfairly dismissed.

Having regard to all the written and oral submissions made in relation to this case, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissal Act – resignation - dismissal not established – no unfair dismissal.