ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042624
Parties:
| Complainant | Respondent |
Parties | Sean Gallagher | Abbot Ireland |
Representatives | Self-Represented | Mr. Terry McNamara, IBEC |
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-00053117-001 | 05/10/2022 |
Date of Adjudication Hearing: 04/08/2023
Workplace Relations Commission Adjudication Officer: Brian Dolan
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.
Background:
The Complainant was an agency worked, hired to the Respondent from 8th February 2021. The Complainant roles was described as that of a “diagnostic assistant”. The Complainant was a full time employee, in receipt of an average weekly payment of €667.54. The Complainant resigned his employment, and consequently his assignment to the Respondent, on 24th April 2022.
On 5th October 2022, the Complainant referred the present complaint to the Commission. Herein, he alleged that he was left with no option but to resign his position following the unreasonable conduct of his direct line manager. As a consequence of the same, the Complainant submitted that he had been constructively dismissed within the definition of the Act. In denying this allegations, the Respondent submitted that they were at all times unaware of any allegations against the Complainant’s line manager and the Complainant had resigned without raising any form of grievance in accordance with their internal policies.
A hearing in relation to the matter was initially convened for 15th April 2023. On this date the Complainant attended without providing a submission or any form of supporting documentation. When queried in relation to the same, the Complainant stated that his former legal advisors were charged with providing the same and held all relevant documentation. In circumstances whereby the Complainant bears the burden of proof in relation to such matters, the matter was adjourned to permit the Complainant to issue submissions in accordance with the Commission’s guidelines in this regard. A subsequent hearing was arranged for 4th August 2023. On this date the Complainant again failed to provide a submission or supporting documentation, again citing difficulties with his former legal representatives. In such circumstances the matter proceeded on the basis of the Complainant’s direct evidence, with the Respondent reserving the right to seek an adjournment dependent on the content of the same.
The Complainant gave evidence in support of his own complaint, while a HR manager gave evidence in defense of the same. All evidence was given under affirmation and was opened to cross examination by the opposing side. At the outset of the initial hearing, the Respondent submitted that the Complainant was not their employee and consequently he enjoyed no jurisdiction under the impleaded Act. Following a brief discussion in relation to the same, it determined that the Complainant was assigned to the Respondent for in excess of one year and, consequently, the liability for any breach of the present Act lay with the Respondent.No further issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.
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Summary of Complainant’s Case:
In evidence, the Complainant stated that he was directly employed by a third-party agency and assigned to the Respondent. He stated that the sole assignment of this engagement was to the Respondent, that this was in effect the role he applied for. The Complainant stated that matters initially progressed quite well and he was happy in the job. Approximately two months following his commencement, the Complainant requested time off to attend the funeral of a family member. While the Complainant’s line manager initially agreed to this request, he was subsequently contacted the Complainant and informed that he was required on-site. The Complainant stated that this was an instance of a wider issue of the Complainant feeling pressured into completing ostensibly voluntary overtime. The Complainant submitted that the adverse treatment at the hands of his line manager caused him significant difficulties in his role, with the same ultimately resulting in his issuing his notice of resignation on 20th April, with his role terminating on 24th April 2022. In answer to a question posed in cross examination, the Complainant accepted that he signed a contract of employment with the agency at the commencement of his employment. When directed to the grievance procedures contained within the contract of employment, the Complainant advised that he called the Respondent’s HR line and requested a call-back, which he ultimately did not receive. He further submitted that he issued an email to the agency in relation to these matters. Regarding this latter point, the Complainant accepted that he did not have a copy of the same in his possession. Finally, the Respondent referred the Complainant to his letter of resignation. In this regard, it was put to the Complainant that this correspondence did not refer to any of the issues reference in his evidence but instead thanked his former employers for the opportunity they provided to him. By response, the Complainant stated that he had found alternative employment at this stage and did not wish to “burn his bridges” with his former employer. |
Summary of Respondent’s Case:
The Respondent submitted that the Complainant had not met the high bar for a successful complainant of constructive dismissal. In evidence, A HR Manager for the Respondent accepted that the Complainant had been assigned to their organisation by a third-party entity. She further accepted that the Complainant was assigned solely to the Respondent on a full-time basis. Regarding the specific complaints raised by the Complainant, the HR Manager stated that the Respondent remained unaware of the nature and specifics of the same until the Complainant gave his evidence on the second day of hearing. In this regard, she submitted that both the Respondent and the agency maintain comprehensive internal procedures regarding the reporting and investigation on internal inter-personal grievances. She stated that if an agency employee raises a grievance in accordance with the Respondent’s own internal procedures, this is then passed to the agency with the Respondent assisting in the investigation to the best of their ability. She submitted that no such grievance was raised by the Complainant internally nor was any reported by the relevant agency. She further submitted that the nature of the Complainant’s resignation gave no cause for concern as the letter of resignation raised no specific issues and seemed positive in tone. By submission, the Respondent’s representative submitted that the Complainant’s application under the Act must fail in circumstances whereby the Complainant clearly failed to raise an internal grievance in accordance with the Respondent’s internal policies and failed to notify the Respondent of the nature of his difficulties either informally or formally prior to his resignation. |
Findings and Conclusions:
In the present case, the Complainant has alleged that he was the subject of ongoing adverse and inappropriate behaviour at the hands of direct line manager. He submitted that the same rendered his working conditions intolerable to the point whereby he was forced to resign and consider himself constructively dismissed. In denying these allegations, the Respondent submitted that the Complainant failed to notify them either informally or formally of the issues he was experiencing and that as a consequence of the same, his complaint must fail. In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows: “…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 Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that, “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.” In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that, ‘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 further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.” In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows, “…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.” To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that, “…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”. In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that, “…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” And, “…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. While the Respondent submitted that the Complainant failed to engage with their or the agency’s internal grievance procedures, the Complainant gave direct evidence of his attempts to progress this matter. In particular, the Complainant submitted that he requested a call-back from the Respondent’s HR department. When he did not receive such a call, he did not progress the matter further. The Complainant also stated that he sent an email to the agency but did not receive a reply in relation to the same. Regarding the first point, it is apparent that this represents an entirely passive attempt at informing the Respondent of the nature of his concerns. When the Complainant did not receive a call back as requested, it was entirely within his gift to seek a meeting directly or, perhaps more appropriately, put the complaint in writing and request that the same be responded to. In respect of the second matter, the Complainant stated in evidence that he sent an email to the agency in respect of these issues. The first point to note in relation to the same is that the Complainant failed to produce this email either in advance of or during the hearing. In attention to the same, the Complainant was unclear as to the precise content of the same and the particular matters it related to. In any event, it is apparent that the Respondent did not have sight of this email at any stage and could not be expected to address the concerns therein. Finally, I note that the Complainant’s letter of resignation is silent as to the issues outlined by him in evidence during the hearing. Having regard to the accumulation of the foregoing points, I find that the Complainant failed to properly engage with the Respondent’s internal grievance procedures prior to resigning his employment. As a consequence of the same, I find that he has not met the test outlined in Section 1 of the Act and he was not unfairly dismissed. |
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 find that the Complainant was not unfairly dismissed. |
Dated: 20th October 2023
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Constructive Dismissal, Grievance, Agency Worker |