Complainant

Respondent

Parties

Alan  Egan

C & Q E M S Limited

Representatives

Richard Stapleton Solicitors

 Beauchamps Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00057503-001

04/07/2023

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

CA-00057503-002

04/07/2023

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

CA-00057503-003

04/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00057503-004

04/07/2023

The Complainant was a fitter and commenced working for the Respondent at the start of February 2015. His employment ended on 26 May 2023.

He received an hourly payment of €16.75 and worked circa 45 hours per week. His gross pay was stated to be €753.75 per week.

Complaints CA-00057503-002 and CA-00057503-003 both related to dismissal under the Unfair Dismissals Act 1977. Complaint CA-00057503-002 set out that he was dismissed.  Complaint CA-00057503-003 set out that he had no option but to leave his job due to the conduct of his employer or others at work (constructive dismissal).

At the hearing, the Complainant withdrew CA-00057503-002.

The Complainant explained that he had taken up work since his dismissal, but at a lower rate of pay.

CA-00057503-001

This complaint was that he did not receive a statement in writing of the terms of his employment.  He did not receive the five-day statement nor a full copy of his terms and conditions.

CA-00057503-002

Withdrawn

CA-00057503-003

The Complainant gave evidence and provided a written statement prior to the hearing.

The Complainant's case was that throughout his employment, he was a loyal and effective employee and he greatly enjoyed working for the Respondent.

The events that led to the Complainant's resignation took place over a weekend in May 2023.

On Friday, 26 May 2023 the Complainant spoke with his supervisor. His supervisor sent him a text to say that he had "saved his skin" and would tell him about it on the following Monday.

He explained that while working on site on Saturday 27 May 2023 he was summonsed to a meeting with the Managing Director around 12 noon. His case was that he was not advised in advance of the purpose of the meeting nor to have a colleague in attendance. During the meeting, he was accused of driving a hoist which had been involved in an accident and caused property damage on a site in around 7 April 2023.

The Complainant advised the Managing Director that he was not the driver of the hoist on the date in question. He identified who the driver was, but this was not accepted by the Managing Director. 

The Managing Director advised that two witnesses could identify the Complainant as the driver on the day in question. The Managing Director refused to identify who the witnesses were or provide witness statements. The Complainant was very concerned about this and felt that he would not be afforded a proper hearing.

It also came to the Complainant's attention on the 30 May 2023 that a member of staff had stated on the 26 May 2023 that the Complainant's employment was going to be terminated. The Complainant was very upset about this and felt that a decision had been made to terminate his employment prior to the meeting of the 27 May 2023.

The Complainant felt he had no option but to resign his position and he did so by text on the 30 May 2023.

He was not contacted by the Respondent in relation to his resignation and no effort was made to address the matters raised in his letter of resignation 31 May 2023.

Under cross examination, the Complainant accepted that the meeting on 27 May 2024 was not a formal investigatory or a disciplinary meeting. The Complainant set out that he didn't remember being told by the Managing Director at that meeting that he couldn't drive company vehicles for a given period of time.

He accepted that he was requested to work on the following Monday by the Managing Director and that he did turn up to work in the normal way.

It was put to the Complainant that he took the word of a third-party described as gossip in reaching his decision to resign. It was put to him that he should have contacted the Managing Director to find out the truth of what going on.

The Complainants evidence was that he felt he would be told nothing but lies and that “he knew the truth”.

Evidence was also given by a mobile crane driver who was a self-employed contractor and also by the Complainant's supervisor. The latter witness could be best described as a hostile witness.

His evidence was that he was not a member of management and never told the Complainant that he would be sacked.

The Complainant submitted that it was reasonable of him to resign his employment.

CA-00057503-004

This was the Complainant's case for minimum notice on the termination of his employment.

CA-00057503-001

The Respondent submitted a contract of employment but it wasn’t signed and the address of the Complainant on it was incorrect.

CA-00057503-002

Withdrawn by Complainant

CA-00057503-003

The Respondent timeline of events was

Saturday, 27 May 2023, the Managing Director spoke to the Complainant regarding an incident in Killarney.

The Complainant attended work on Monday 29 May 2023 with his supervisor.

The Complainant did not attend work on Tuesday 30 March 2023 site and at lunchtime sent a text to the Managing Director:

"Ger I'm finishing working with Concrete and Quarry I think it's the best all round".

The Complainant contacted payroll on Wednesday, 31 May 2023 seeking his final paycheque and submitted a letter of resignation.

The Complainant submitted a complaint form to the WRC on 4 July 2023.

Its case was that the Complainant had been involved in a number of accidents during his employment with the Respondent and on occasion the accidents involved damage to the Respondents machinery and vehicles. The frequency of the accidents and cost to the business had become a concern and some of the Complainant's colleagues had expressed concern about working with him when he was operating machinery.

The Managing Director was aware of an incident that had occurred while the Complainant was operating a large hoist on a project in Killarney the previous day. The accident resulted in a bad bend to the safety rail on the hoist.

The Managing Director decided to “have a word” with the Complainant.  They were both working on Saturday, 27 May 2023. The Managing Director asked to speak to the Complainant in private in an office.

He outlined the information he had and explained that as a consequence of this accident and other previous accidents, he thought it was best for the Complainant's safety and the safety of other employees if the Complainant did not drive machinery for a period of six months. His evidence was he said to the Complainant "be careful at the next site". 

As far as the Managing Director was concerned, this was accepted by the Complainant and that was the end of the matter.  The Managing Director's evidence was that there was no heated exchange between the parties. He said that in the past he had asked the Complainant to stay away from certain machinery.

Under cross examination the Managing Director stated that the meeting was an informal chat and there was to be no consequences arising from same. He denied that his request for the Complainant not to drive vehicles for six months would be described as a consequence.  He said that there would be no reduction in the Complainant's wages. He said the Complainant had been an employee for a long time and he was prepared to give them a second chance.

He accepted that there were no minutes of this meeting and that he did not respond to subsequent correspondence sent to him by the Complainant solicitor.

The Managing Director's evidence was that he didn't know that the Complainant had rang looking for his final paycheque. He wasn't aware the Complainant had formally resigned for a day or two afterwards.

On becoming aware, he rang the Complainant's number, but the call went unanswered.  The Managing Director said he was surprised that the Complainant resigned.

CA-00057503-004

The Complainant resigned without notice. 

CA-00057503-003

Section 1 of the Act 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

It is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act and that such dismissal was unfair within the meaning of the Act.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; in essence that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”.

In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”.

Secondly, the Act at Section 1 addresses the issue of reasonableness. It is settled law in considering a complaint of constructive dismissal, I must consider this issue either as an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer and, if so, he is justified in leaving.

In constructive dismissal cases I must examine the conduct of both parties. A complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance he or she may have. The Complainant must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank Limited UD 474/1981).

In Beatty v Bayside Supermarkets UD 142/1987, in referring to the need to utilise grievance procedures, the Employment Appeals Tribunal held:-

“The Tribunal considers 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”.

The Complainant submitted that a decision had been made by the Respondent to terminate his employment and it was inconceivable that the Complainant would have concocted that story considering his length of service. 

I note that the Complainant at no time raised a grievance as regards his complaints and I note the existence within the employment of a detailed grievance procedure.  This was contained in the Employee handbook.

Having considered the evidence presented to me I find that the Respondent undertook no action either before or subsequent to the meeting 27 May 2023 which could be regarded as unreasonable to the degree that the Complainant could be justified in terminating his employment as a result.

No evidence was presented to me to allow me conclude that the conduct of the Respondent was inadequate or unfair to the degree that its conduct undermined the root of the employment contract.

No factors were presented to me to excuse the Complainant’s failure to formally complain to the Respondent before resigning.

On the facts of this case the Complainant made a decision to resign to avoid his employment being terminated by the Respondent.  The Respondent denied that it was going to do so. 

The Respondent continued to assign the Complainant with work after the meeting on the 27 May 2023 and apart from the Complainant’s own belief, nothing was presented to me that indicated that the employment relationship was going to end.  If what he believed was to take place, I am at a loss as to what was the gain in resigning beforehand. 

In all the circumstances, I cannot find that the Respondent’s conduct was unreasonable to the degree that the Complainant could be justified as a result in terminating his employment by way of constructive dismissal nor was the Respondent’s conduct such as to show that it no longer intended to be bound by one or more of the essential terms of the Complainant’s contract of employment.

I am satisfied that the Complainant had time to 'cool off' by the time the Managing Director contacted him by phone. The Managing Director’s call was answered.

Accordingly, I hold that the Complainant’s employment did not come to an end by reason of dismissal.

CA-00057503-004

In Halal Meat Packers (Ballyhaunis) Ltd v. Employment Appeals Tribunal [1990] E.L.R. 49, 59.Murphy J. in the High Court confirmed that an employee who has been ‘constructively dismissed’ cannot claim under this Act.

CA-00057503-001

This complaint is well founded and I award the Complainant compensation of four weeks salary which amounts to €3,015.00.

CA-00057503-002

This complaint was withdrawn at the hearing.

CA-00057503-003

This complaint is not well founded.

CA-00057503-004

This complaint is not well founded.

Resignation.  Constructive Dismissal complaint.