FULL DECISION
SECTION 44, WORKPLACE RELATIONS ACT 2015 SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: E. C. S. C. LTD ENNISCORTHY COMMUNITY SERVICES (REPRESENTED BY JULIE BREEN SOLICITOR) AND THOMAS O'BRIEN DIVISION:
Appeal of Adjudication Officer Decision No's: ADJ-00041456 (CA-00052475-001).
The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 23 March 2023 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 17 January 2024. The following is the Decision of the Court: DECISION: The is matter comes before the Court as an appeal by Thomas O’Brien (the Appellant) of a decision of an Adjudication Officer in his complaint made under the Unfair Dismissals Act, 1977 (the Act) against his former employer E.C.S.C Ltd Enniscorthy Community Services (the Respondent). The Adjudication Officer decided that the complaint of the Appellant was not well founded. The Appellant commenced employment as an Information Officer with the Respondent under the Community Employment Scheme (the CE Scheme) on 10th December 2018. His earnings comprised a wage equal to his entitlements under the Social Welfare code plus €22.50 per week. He resigned his employment on 13th May 2022. Upon the termination of his employment, he reverted to his entitlement under the Social Welfare code and was at the loss of the supplementary amount of €22.50 which he had received while in employment on the scheme. It was not in dispute before the Court that the rules of the CE Scheme were such as to mean that the Appellant’s employment would, in any event, have had to terminate in October 2022.
Summary submission of the Appellant. The Appellant submitted that an accumulation of concerns led him to resign his employment on 13th May 2022. He outlined the following matters as having contributed to his decision to resign:
The Appellant when questioned by the Court did not make any submission as regards events or conduct or behaviour of the Respondent occurring in March or April 2022 or at any time proximate to his decision to resign his employment, which amounted to conduct which undermined his contract of employment or was so unreasonable as to mean that it was reasonable to resign and to regard himself as constructively dismissed. He submitted that he did speak to the Chairman of the Respondent company and the Supervisor in March 2022 to set out his concerns that the workplace was a toxic workplace, that water facilities were inadequate and that the Supervisor had assigned a client to him which had resulted in there being more than one person in his office on a number of occasions in September / October 2021. The Appellant submitted that he did not initiate a formal grievance with the Respondent in relation to any of his concerns because he did ‘not believe he would get anywhere with it’. The Appellant made an oral submission at the hearing of the Court but had earlier made a written submission. He stated, when invited by the Court, that he did not wish to tender evidence on oath or to call a witness on his behalf to do so.
Summary submission of the Respondent. The Respondent submitted that the worker was not constructively dismissed and that no behaviour or conduct of the Respondent was such as to mean that it was reasonable for the Appellant to terminate his employment. There was no repudiatory breach of the contract of employment of the Appellant. No dismissal had occurred. The Appellant engaged with the Supervisor in early 2022 to enquire about leaving his position before the end of his then current contract period. She assured him that that there would not be a negative impact on his social welfare payment, which appeared to be his primary concern at the time. He also advised the Chairman of the Respondent at that time of his intention to resign. The Appellant did not make either the Supervisor or the Chairman of any concerns he had at the time or seek to have any grievance addressed by the Respondent. He tendered his resignation in mid-April 2022, giving one month’s notice. The Respondent submitted that the burden of proof rests squarely on the Appellant to establish that his employment terminated in circumstances where, because of the conduct of the employer, he was or would have been entitled, or it was or would have been reasonable, for him to terminate the contract of employment. The Respondent submitted that having regard to the jurisprudence of this and other Courts, it is fatal to the complaint of the Appellant that he raised no grievance as regards any concerns with the Respondent and consequently deprived the Respondent of the opportunity to address any issue in the employment. The Respondent submitted a form entitled ‘Final Review (Exit Planning) with CE Participant’ which the Appellant completed and signed in May 2022. The Respondent submitted that no matter of concern was raised by the Appellant in that document. The document, in the submission of the Respondent, was positive in tone and set out the benefits which ha d accrued to the Appellant from participation in the scheme.
Summary testimony of the Supervisor on behalf of the Respondent Ms M. Carroll gave evidence of her interaction with the Appellant in March 2022. She said that she did speak to the Appellant at that time and that the Appellant advised her that he intended to resign his employment. He did not outline any concerns with her at that time and she was unaware of any matter giving rise to concern on his behalf. The Appellant declined to cross examine the witness on her evidence when invited to so by the Court.
Summary testimony of the Chairman on behalf of the Respondent The Chairman stated that he had had a conversation with the Appellant in or around March 2022 wherein he advised of his intention to resign his employment and wherein he asked the witness to act as a reference in the context of his search for employment. The Appellant did not raise any grievance or concern with the Chairman. The Appellant dec ined to cross examine the witness on his evidence when invited to do so by the Court.
Relevant Law Section 1 of the Act defines constructive dismissal in the following manner “ 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,” Section 6(1) of the Act states “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
Discussion and conclusions Dismissal as a fact is in dispute between the parties and, consequently, it is for the Complainant to establish that, on the balance of probability, his employment came to an end in circumstances amounting to a dismissal as that term is defined by 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 amounts 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, an additional ‘reasonableness’ test may be relied upon as either 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 the within appeal the Appellant has recited a range of what he contends were concerns in his employment dating from March 2019. He has not submitted that the conduct of the Respondent at any material time amounted to a significant or repudiatory breach of his contract of employment which went to the root of, or undermined that contract in such a manner as would have permitted him to have regarded that contract as having been terminated. The question that arises for decision therefore in this case is whether it was reasonable for the Complainant to terminate his employment in the circumstances outlined by him to the Court in circumstances where the conduct or behaviour of the Respondent was so unreasonable as to mean that it was reasonable for him so to do. In constructive dismissal cases, the Court must examine the conduct of both parties. 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. They 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 UDA474/1981). In Beatty v Bayside Supermarkets UD142/1987, 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 475/1981. 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 instant case the Appellant submitted that he did not raise a grievance because he ‘did not believe he would get anywhere with it’. The Court is not satisfied that any submission has been made which would support the Appellant’s conclusion in this respect. The Appellant submitted that he had advised the Supervisor and the Chairman of his concerns in March 2022. The sworn testimony of both individuals before the Court was to the effect that in neither case had the Appellant raised any concerns in March 2022. The Court, where facts are in dispute, must give appropriate weight to testimony proffered by witnesses under oath. The Court therefore, on the basis of the testimony given under oath by two witnesses, is satisfied that, as a matter of fact, the Appellant did not raise any concerns with the Supervisor or the Chairman in March 2022. The Supreme Court in Berber v Dunnes Stores [2009] IESC 10, 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 assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The Court is satisfied that the Appellant took a decision not to raise a grievance or to advise the Respondent of any concerns and consequently deprived the Respondent of the opportunity to address any such concerns. The Court has considered the detailed oral and written submission of the Appellant wherein he outlined concerns as regards a range of matters including the assignment of a client to him by the Supervisor approximately eight months before his resignation. The Appellant has failed to establish that the Respondent’s conduct on any occasion proximate in time to his decision to resign amounted to conduct which undermined the contract of employment or otherwise was so unreasonable as to mean he was entitled to resign his employment and to have that resignation interpreted as an unlawful dismissal within the meaning of the Act. It has been well established in the case law that a complainant in a constructive unfair dismissal case bears a high burden of proof in order to establish that it was reasonable for him or her to resign their employment and to regard themselves as constructively dismissed in response to an objectively perceived deficiency in their employer’s dealings with them. For the reasons referred to the preceding paragraphs, the Court finds that the Complainant in this case has not succeeded in overcoming that high burden.
Decision The Court cannot find that the Respondent conducted itself so unreasonably as to justify the Appellant’s termination of his employment by way of constructive dismissal nor was it such as to demonstrate that the Respondent no longer intended to be bound by one or more of the essential terms of his contract of employment. The within appeal fails and the decision of the Adjudication Officer is affirmed.
The Court so decides.
NOTE Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary. |
