Complainant

Respondent

Parties

Thomas  O'Regan

Tullow Day Care Centre CLG

Representatives

  Self-represented

Adare HRM

Act

Complaint 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-00056802-001

19/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00056802-002

19/05/2023

Request for an investigation by a Workplace Relations Commission under the Terms of Employment (Information) Act, 1994

CA-00056802-003

19/05/2023

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

CA-00056802-004

19/05/2023

The Complainant was employed as a driver from December 2010 until his employment ended on 30 December 2022. Dismissal is in dispute. The Complainant also referred complaints regarding his contract of employment and statutory break entitlements which were refuted by the Respondent.

The Complainant outlined that his original contract of employment was mislaid. He was furnished with a new contract but he was not happy about this as the details therein were different to the terms he agreed to on commencing the job.

In 2022 the Respondent decided to reduce the number of dinner-runs per day from 5 to 3. The Complainant was told that he would have a helper with him on these runs, but on several occasions he did not. The Complainant was unable to avail of his daily 30-minute statutory rest break on several days as a result. He commenced work at 9.30am and finished work between the hours of 3.30pm and 4pm. The Complainant submitted that he got a tea break for 15 minutes at 9.45am most days. The Complainant raised the issue of missed breaks with the Centre Manager and she said that he had to get his breaks but the Centre Manager did nothing to ensure that the Complainant took his statutory break every day.

The Complainant outlined that on 30 February 2022 he walked out of work as he had enough. On that day he was supposed to have a work colleague with him on the dinner run but he was told that this colleague could not assist him as she was needed on another run that day. The Complainant outlined that he had several concerns which lead to his decision to resign, some of which dated back to 2020 as follows:

(i)               During the COVID-19 pandemic the Complainant had to share a bus with other colleagues. Some other drivers did not clean the bus after they used it despite an instruction from management to do so. The Complainant raised these concerns and was given a bus for his use only. The keys were to be locked in the office. The Complainant was happy with this arrangement until the keys were given to another driver.

(ii)              The Complainant offered to assist a service user out of working hours as she had hurt her back. The previous manager would have approved of this but the new Centre Manager did not and the Complainant was forced to sign a letter regarding the incident.

(iii)            The Complainant was instructed to check the temperature of all persons before they boarded the bus. Drivers were instructed not to bring in a service user to the centre if they had a temperature. One day a service user had a cough and temperature. The Complainant rang the Centre but was advised to allow the person to come into the centre regardless. The Complainant was dissatisfied with this instruction as this presented a risk to other elderly service users.

(iv)            The Complainant described an incident concerning a work colleague who was given instructions to bring a service user home despite concerns for her health. The Complainant felt that this was wrong.

The Complainant outlined that on several occasions he was instructed to bring wheelchairs onto the bus despite this being against the rules of the road. Further, the Centre Manager told him on a day-outing that, having checked the matter with the insurance company, the tachograph limit could be exceeded. The Complainant was concerned that if the Gardaí stopped him how would he explain this. The Complainant outlined that on one occasion in 2022 the Centre Manager shouted at him in the office. He was taken back and left without responding.

The Complainant had an opportunity to raise these concerns before members of the Board of Management. The Complainant said he was told by another person that the minutes of this meeting were subsequently changed. The Complainant did not tell the Centre Manager or the Chairman of the Board of Management that he was considering leaving the job. He is not currently working elsewhere and did not look for any other work as he is retired.

In cross-examination the Complainant confirmed that he had come to an agreement with management that he would get a revised contract and confirmed that he received that contract. The Complainant confirmed that he signed a daily time sheet which recorded daily starting and finishing times and break times. It was put to the Complainant that it was not appropriate for him to attend to a service user out of work hours for insurance purposes. The Complainant responded that he was told by his colleague in the office that she would ensure this service user was looked after and he was not to be troubling himself in that regard. It was put to the Complainant that the letter he alleged he was forced to sign in relation to this matter was an ‘incident report’. The Complainant responded that this letter was missing from his file. It was put to the Complainant that ‘incident reports’ are not stored on personnel files. The Complainant accepted that he could not point to what had been changed in the minutes of the meeting he had with the Board of Management, and that the person who alleged the minutes were changed was not present to give evidence in that regard. The Complainant accepted that he had a problem with the Centre Manager. The Complainant was asked if, on the day he left his employment, anyone else was offered to assist him on the run, to which the Complainant responded, “I didn’t wait around to see”. The Complainant was asked why he did not alert any member of management of his intention to resign or raise the issue with the Chairman as he had access to him. The Complainant responded that it took a while to get a meeting with him previously in relation to his other concerns. The Complainant was asked if he was contacted after he left, to which he responded that he got a nasty email and unfriendly calls from the Centre Manager. The Complainant was asked what evidence he had that vehicles were not cleaned. The Complainant said they looked as if they were not cleaned and that he reported that. The Complainant was asked why the Centre Manager would show him a letter confirming that he could exceed a certain mileage if that were not the case. The Complainant responded that he did not know and that he had to accept what she said. It was put to the Complainant that he had given no reasons why he had no option but to resign his employment, and further that he had not exhausted all options open to him before resigning.

Evidence of Ms Sinnott (under oath)

Ms Sinnott told the hearing that she got on well with the Complainant when she worked in administration, but that she felt the relationship changed after she became the Centre Manager. She was not aware of the issues the Complainant had concerns about until the meeting between him and the Board of Management. Ms Sinnott outlined that the Complainant was very caring towards service users. However, if she was trying to implement anything new, the Complainant had a difficulty with that. Ms Sinnott outlined that the Complainant was concerned about mileage on the day-outing and she got a letter from the insurance company so that he could be re-assured that the Respondent was doing nothing wrong.

Ms Sinnott submitted that in June 2021 she advised all staff that revised contracts would be issued to ensure employment law compliance and no one objected to that at that time. She tried her best to locate the Complainant’s original contract but she could not locate it so she gave him a template which was the same as the document he originally received.

Ms Sinnott outlined that if there was capacity, a colleague would accompany the Complainant on his runs. But this was only if there was sufficient cover to permit same.

Ms Sinnott submitted that she had never heard of a service user being unwell until the hearing and no incident report was completed regarding the concerns of the work colleague in relation to this service user.

Ms Sinnott outlined that the Respondent went to considerable efforts to issue instructions on the cleaning of vehicles and other requirements to keep service users and staff safe during the pandemic. The decision to allow a service user to come into the Centre on that date was within the remit of the Centre Manager as per HSE advice.

Ms Sinnott outlined that she was on leave for two weeks when the Complainant resigned. There was a Grievance Procedure in place which the Complainant could have used or alternatively he could have spoken to the Chairman of the Board of Management, but he did not do this.

Ms Sinnott submitted that she had no recollection of instructing the Complainant to bring a wheelchair onto the bus, but in any event the Complainant had a facility on his bus to safely store a wheelchair.

The Complainant declined the invitation to cross-examine Ms Sinnott.

CA-00056802-001

The Complainant was dissatisfied that his original contract of employment was mislaid. The Complainant was also dissatisfied that he had been provided with a copy of the same contract but belonging to another driver (with all personnel details redacted). I accept the Respondent’s submission that it tried to locate the original contract but was unable to do so. Further, I accept the Complainant was furnished with a new contract of employment for compliance purposes, and that this template was aligned with the Complainant’s actual terms and conditions of employment. When this document was given to the Complainant, he did not object to that contract or to the terms therein, and he signed the document, notwithstanding that he was advised that he did not have to sign the document. While the document was different from the original contract, it was not disputed that the Complainant’s terms and conditions of employment remained unaltered in practice.

The Terms of Employment (Information) Acts 1994–2014 requires that employers give employees certain information about their employment within a specified period, and to notify the employee in writing of any changes thereto. I find there was no contravention of the Terms of Employment (Information) Act, 1994 and that this complaint is not well-founded.

CA-00056802-003

This is a duplicate complaint to CA-00056802-001. Therefore I find this complaint is not well-founded.

CA-00056802-002  

Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 (“the Regulation”) provides at 8(1) “no person performing mobile road transport activities shall work for more than 6 consecutive hours without a break”. Where the working time exceeds 6 consecutive hours, a break of 30 minutes must be given. Each break may be made up of separate periods of not less than 15 minutes each.

The Complainant worked from 9.30am until 3.30pm or 4pm each day. He received an early morning break of 15 minutes and a further 30-minute break later in the day. It is the Complainant’s case that on several days he did not receive the 30-minute break.

Whereas it is for the Respondent to prove compliance with the requirements of the Regulation, an initial burden rests upon the Complainant to particularise his complaint by setting out the detail of any occasion on which he contends that a breach of the Regulation occurred. This complaint was presented to the WRC on 19 May 2023. Therefore, the cognisable period for this complaint in accordance with the provisions of s 41(6) of the Workplace Relations Act 2015 is the six-month period prior to the referral of the claim i.e. 20 November 2022 to 19 May 2023 .  The Complainant was unable to particularise his complaint in respect of the number of days and/or dates on which he did not get a minimum of 30 minutes daily rest during the cognisable period relevant to this complaint. By contrast, it was common case that the Respondent maintained time and attendance sheets showing the daily start and finish times of the Complainant and the time and duration of breaks. These sheets were completed by the Complainant and were counter signed by the Manager. It was the Respondent’s case that these time sheets showed that the Complainant received his statutory breaks. During the hearing the Complainant was given an opportunity to view numerous timesheets. He pointed to three dates on which he did not receive a 30-minute break. However, none of these dates fell within the cognisable period relevant to this complaint. Therefore, I find this complaint is not well-founded.

CA-00056802-004

The burden of proof is on the Complainant to establish that his resignation was not voluntary. There are two tests contained within the definition of constructive dismissal at s 1(b) of the Unfair Dismissal Act 1977 (as amended) (“the 1977 Act”). Either or both tests may be invoked by an employee. Either test may be applied by the WRC.

Section 1 of the 1977 Act defines dismissal, which includes at (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 . . . .”

Where the contract is terminated by the employee, there is only a dismissal within the meaning of s (1)(b) of the 1977 Act if, “because of the conduct of the employer”, the employee was “entitled” to, or it was “reasonable” to terminate the contract of employment. Accordingly, the question of the dismissal must be considered under “entitlement” and/or “reasonableness”.

The contract test is used to assess entitlement to terminate the contract and was summarised in a UK Court of Appeal decision by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.C.R. 121 (cited in Berber v Dunnes Stores [2009] IESC 10) 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 further performance.”

An employee may be entitled to terminate the contract where the employer engages in conduct which results in a fundamental breach of the contract, or which indicates that the employer no longer intends to be bound by the terms of the contract.

A general term is implied into every contract of employment that the employer will not impair the ‘trust and confidence’ of the employee. In Malik v Bank of Credit and Commerce International [1997] 3 All ER 1 (cited in Berber v Dunnes Stores [2009] IESC 10), Lord Stein stated:

“The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust or confidence between employer and employee”. In Malik the threshold was held to be high: it must “destroy or seriously damage” the trust between the parties. However, it is not essential that the employer be aware of the effect of the conduct. Nor that they intended such an effect”. 

Similarly in Joyce v Brothers of Charity Services [2009] ELR 328, the Employment Appeals Tribunal (EAT) held that the conduct “. . . cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee”.

In Berber v Dunnes Stores Ltd [2009] IESC 10, it was held by the Supreme Court that in determining if there has been a breach in the implied contractual term of mutual trust and confidence, the conduct of both the employer and employee must be examined as a whole, and the cumulative effect of the conduct must be looked at. The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively, reasonably, and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour.

The reasonableness 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, she is justified in leaving . . . .” (Cedarglade Limited v Tina Hilban UDD 1843). Thus it may be reasonable for an employee to terminate the contract because of the conduct of the employer even if the employer had adhered to the contractual terms.

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v Lootah & Others, UD1219/2013).

It is well settled law that an employee must make reasonable efforts to bring the grievance to the attention of the employer before resigning. In O’Gorman v Glen Tyre Company Ltd (UD2314/2010), the EAT noted:

“[I]t is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues”.

At a minimum the employee will be expected to utilise the company grievance procedure. In Conway v Ulster Bank Ltd (UD 474/1981), the EAT noted that “it is not for the Tribunal to say whether this procedure would have produced a decision more favourable . . . but it is possible”.

It is also well settled law that an employee may be justified in resigning without utilising the grievance procedure in some circumstances. In Mr O v An Employer (no. 2) [2005] 16 ELR 132, the court accepted:

“. . . in normal circumstances 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 they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal”.  

I find the Complainant has not discharged the burden of proof on him to establish that his resignation was not voluntary. I cannot find on the evidence that the Respondent engaged in conduct which resulted in a fundamental breach of the contract, or which indicated that the Respondent no longer intended to be bound by the terms of the contract. Nor do I find the Respondent conducted its affairs in relation to the Complainant so unreasonably that the Complainant was justified in resigning. On the complaint form presented to the WRC, the Complainant stated that the reason for his resignation was due to bullying, intimidation, and harassment. At the hearing, the Complainant cited examples of things he heard from others. None of these people were present to give evidence in relation to these alleged remarks. It was common case that the Complainant had concerns regarding several issues. These issues, which were outlined at the hearing, had been the subject of a meeting held on 12 May 2022 between the Complainant and members of the Board of Management. Every effort was made to resolve these issues where possible. The Complainant came across at the hearing as a very diligent employee who was concerned to do the right thing by service users and to strictly adhere to all rules and regulations. I accept the evidence of the Respondent that the Complainant had a difficulty with the Centre Manager and that he took exception to many of her decisions. I do not find that there is any evidence whatever that the Centre Manager subjected the Complainant to any behaviour that could be construed as bullying, intimidation, or harassment. Further, I do not find that any of the issues raised by the Complainant, looked at in isolation or cumulatively, justified the Complainant’s decision to resign. I further find the Complainant acted unreasonably in not fully engaging in the Respondent’s grievance process before resigning. I therefore find the Complainant’s complaint under the Unfair Dismissals Acts 1977-2015 is not well-founded.

CA-00056802-001

I decide this complaint is not well-founded.

CA-00056802-003

This is a duplicate complaint to CA-00056802-001. I decide that this complaint is not well-founded.

CA-00056802-002  

I decide this complaint is not well-founded.

CA-00056802-004

I decide this complaint is not well-founded.

Constructive dismissal. Terms of employment. Daily rest intervals.