Complainant

Respondent

Parties

Cornelis  Van Tonder

Brennan Furniture & Carpets Limited

Complainant

Respondent

Anonymised Parties

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Representatives

McEntee & O'Doherty Solicitors

 Wilkie & Flanagan 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-00041819-001

06/01/2021

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

CA-00041819-003

06/01/2021

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

CA-00041819-004

06/01/2021

The complainant alleges he was constructively dismissed following an altercation with the respondent.  Evidence was given under oath/affirmation by the complainant Mr Van Tonder, and on behalf of the respondent by Mr Carl Brennan, Owner/Director of the business, and Ms Jeanette Mullen, Administrator.  Cross examination took place of all witnesses.  Submissions were received from both parties and considered by me.

The complainant commenced work for the respondent in October 2017.  He was not provided with a written statement of his terms of employment.  His primary duties were to load and unload deliveries to and from the respondent’s furniture and carpet business.

During Covid 19 the complainant complained to the owner, Mr Carl Brennan, that due to the increase in business he and his co-worker were required to do the work of four men.  Mr Brennan responded by having his untrained son of 14 and another schoolboy help out which had health and safety implications.  The increase pressure led to errors occurring.  As a consequence on Saturday 4th July 2020 the complainant and his co-worker were unable to load all of the deliveries due to go out on Monday 6th July.

On Monday 6th July 2020 Mr Brennan confronted the complainant about the failure to complete the order.  The complainant complained to Mr Brennan about the working conditions and the use children in the warehouse to do the work of adults.  Mr Brennan grabbed him by the neck and shoved him out the door of the premises saying ‘good luck’.  Two female employees at the reception area were present.  Mr Brennan made no further contact with the complainant.

On or around 11th August Mr Brennan’s sister made contact with the complainant asking him for a resignation letter and informing him that on receipt of that she would furnish him with his P45 and copies of his payslips.  In the absence of these documents the complainant was unable to secure other employment and was unemployed until April 2021 when he got part time work and finally in July 2021 secured full time employment.

The complainant’s solicitor wrote to the respondent seeking the various documents on 28th August.  By reply the respondent’s solicitors wrote on 4th September stating that the complainant had not been dismissed and suggesting reinstatement.

Preliminary Issue

The complaint form refers to the employment terminating on the 3rd of July 2020 and also refers to the Complainant being dismissed on the 6th of July 20220. If employment terminated on the 3rd of July as set forth in the complaint form the complaints are out of time.

Substantive issue

The Complainant was employed as general operative, whose duties included the loading of goods onto lorries for onward delivery. This required the Complainant to load the goods on so as to match the various deliveries to be made by the lorry driver. The Respondent is a supplier of furniture and carpets and floor coverings and does so nationwide.

The work required the Complainant to load the goods on to delivery lorries so as to match the various deliveries to be made by the lorry driver. In short, if the goods were not loaded the lorry driver would be unaware of this until arrival at the destination for delivery of those goods. If goods were not loaded this would give rise to very serious implications including problems for the customer expecting and relying upon delivery, the consequent backlash on the Respondent from the customer and loss of goodwill and a loss of hours for the lorry driver, waste of fuel and other associated costs in having to make this delivery again at a later date particularly as the Respondent provides a nationwide service.

On the weekend of the 3rd of July 20220, and purely as a matter of chance, Carl Brennan, Director of the Respondent received a last minute request form a customer to load on some additional items for delivery on the Monday following the 6th of July 20220. Carl Brennan attended at the lorry on the Sunday the 5th of July 2020 which ought to have been fully loaded by the Complainant with the manifest of items for delivery.

When adding in the additional items being sought it was necessary for Carl Brennan to open up the rear of the lorry to do so and upon doing so saw it was clear that the items otherwise to be loaded by the Complainant had not been fully loaded. Carl Brennan completed the loading of the lorry which ought to have been done by the Complainant and also added in the additional items being sought. If not for the late notification by a customer, the lorry would have been incompletely loaded on the Monday and the issues identified above would have arisen.

As a result of the above, Carl Brennan sought to speak to the Complainant concerning this and the significance and importance of this on Monday morning when he asked the Complainant to go outside and discuss it out of earshot of other members of staff.

Carl Brennan at no time grabbed the Complainant by the neck, pushed him against a wall or otherwise verbally or physically abused him. It was in fact the Complainant who became aggressive and shouted at Carl Brennan throughout, until it became necessary for Carl Brennan to ask him to go outside. At no time did Carl Brennan raise his voice to the Complainant or verbally or physically abuse the Complainant. CCTV footage of such discussion as occurred outside, shows a brief verbal interaction between Carl Brennan and the Complainant, with no touching or assault as is alleged by the Complainant.

Given that the Complainant had terminated his own employment on another previous occasion and when allowed to “cool off” returned to work, it was felt that it better to allow some time for him to do the same. Regarding the text from the Complainant it is clear that the Complainant accepted he had terminated his own employment but then subsequently suggested that he would say he was dismissed and then further stated that it would be whatever suited Carl Brennan.

In any event, following receipt of the correspondence from the Solicitors for the Complainant, the respondent Solicitors responded stating that the Complainant had left of his own accord, something he had done before and the respondent had no idea as to why he left either following the discussion between the parties or from the correspondence received and that he was welcome to return to work.

Correspondence was then received from the solicitors for the Complainant wherein it was alleged he would not return to work because he had been assaulted, a matter which is denied and unsupported by the CCTV footage, the evidence of Carl Brennan and the evidence of other members of staff present who confirm in fact that the Complainant was acting aggressively towards Mr Brennan by shouting at him and in circumstances where Mr Brennan did not in fact raise his voice at all and had to ask him to go outside away from other staff members.

There are two tests in relation to proving that a constructive dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer. In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised 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.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer 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.”

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981).

The behaviour of the employer in such scenarios is referred to by the EAT in Donnegan v County Limerick VEC [UD828/2011] where it is stated: “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated:

“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 her 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 Complainant was invited back to work, an invitation which he refused on the basis of an allegation of assault, which allegation is misconceived given the CCTV footage and the evidence adduced on behalf of the Respondent by witnesses.

Preliminary Issue.

The respondent raised the issue of the date of the alleged dismissal.  The complaint form mentioned both 3rd and 6th July 2020.  If it was the 3rd July then the complaint would have been made outside the statutory 6 months’ limit.  At the hearing the complainant confirmed that the date of the 3rd July in the complaint form was an error and that the date of the alleged dismissal was in fact the 6th July.  The complaint is therefore in time.

CA-00041819-001  Terms of Employment.

The respondent conceded that the complainant had not been given his terms and conditions of employment as required by the Act.  The Act was therefore contravened.

CA-00041819-003, CA-00041819-04 -  Unfair Dismissal

The complainant is alleging that he had no alternative but to resign following his treatment by the respondent and/or was in fact dismissed.  The respondent denies that he dismissed the complainant.

Section 2(1) of the Unfair Dismissals Act defines a dismissal as including:

“The termination of a contract of employment by the employee (whether prior notice of 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 to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so …”.

It is clear from the complaint that the complainant regarded himself as having been constructively dismissed.  Where constructive dismissal is alleged the burden is on the complainant to show that he was justified in deciding that the actions of the respondent constituted a dismissal.

There are two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 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 discharged from any further performance”.

This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.

There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts 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. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving.

In this instance there is no allegation of a substantial breach of contract but rather that the behaviour of the respondent was unreasonable.  The issue at the core of the altercation between the complainant and the respondent was the loading of the truck in time for the Monday delivery.  From the complainant’s viewpoint this failure was due to being overworked, an issue which he said in evidence, he previously informed the respondent about and that the respondent’s solution was inadequate as he used children to support the complainant.  From the respondent’s viewpoint the failure to complete the full order could have serious consequences for the company.  The respondent did acknowledge that during Covid the business had become busier.  This would appear to support somewhat the complainant’s version that he was overworked.  However, I believe where he did not fill the order in its entirety, the complainant should have notified the respondent in time to avoid adverse consequences for the company.  His behaviour therefore, in this regard, contributed to the subsequent altercation between him and the respondent.  There is a difference in the evidence as to any physical interaction that took place during the altercation, however, it is acknowledged at a minimum that a heated argument took place.

The respondent in evidence stated that he was of the view that the complainant needed some time to cool off as he had, on a previous occasion, left but subsequently returned.  The respondent stated that he thought that that was happening on this occasion also.  However, the respondent confirmed in evidence that he was aware of the messages sent by the complainant in which he stated that he was leaving as a result of the conflict.  The respondent should therefore have been aware that this was different from the previous occasion and that the complainant was leaving as a result of their earlier altercation. 

The respondent in his submission correctly argues that there is an obligation on the employee to use internal grievance procedures to attempt to remedy the issues causing concern.  However, this presupposes the existence of such procedures in the workplace and that they have been brought to the attention of the employee.  In his evidence the respondent acknowledged that he did not have a written grievance procedure in place and therefore it is clear that the complainant could not use one.  It follows therefore that the normal requirement to have exhausted internal procedures in order to sustain a case for constructive dismissal cannot apply in this instance.   In the absence of a grievance procedure there was an obligation on the respondent to take positive action to remedy the situation particularly where his subsequent position (some time later) was that the complainant was welcome back to work. The evidence in texts, sent at the time of the altercation, that the complainant was taking the contract to have been broken required a response from the respondent if he believed differently.  He should have contacted the complainant at that stage and said that he could return to work.  His failure to do so, and the absence of grievance procedures to allow the complainant to try and address the core issue mean that the complainant was justified in terminating the employment relationship based on constructive dismissal.

In these circumstances I find that the complainant was unfairly dismissed. His losses were approximately €20,000.  In determining the appropriate compensation for the dismissal I have taken into account the contribution of the complainant to the dismissal and reduced the compensation by 25% to a sum of €15,000.

CA-00041819-001  The Act was contravened and I order the respondent to pay the complainant €300 in compensation

CA-00041819-003, CA-00041819-04  The complainant was unfairly dismissed and I order the respondent to pay the complainant €15,000 in compensation.

Constructive dismissal,  absence of Grievance Procedures.