Complainant

Respondent

Parties

Declan  McMullan

Keyguard Security Ltd

Representatives

Áine Feeney SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054365-001

05/01/2023

The Complainant commenced working for the Respondent on the 8 March 2021 as static security officer.

His start time changed during his employment.  It was 7:00 A.M. but was changed to 5:30 A.M.

He was absent from the workplace on certified sick leave from the 4 April 2022.

His employment ended on the 6 July 2022 by his resignation.

He was paid an hourly rate of €11.65.

The Complainant gave evidence. He referred to incidences which took place when he was appointed to the role and the lack of support he received when changing to a different location of work.  He outlined incidents regarding the  failure to provide him with the staff union uniform, failure to pay him for hours worked over 48 hours in a week, failure to allow him time off for sick leave. 

The Complainant gave evidence as to the events leading up to his absence from the workplace on sick leave.  He explained that in early January 2022, his mother became gravely ill and this necessitated him to request time off at short notice.

Prior to the time of his mother’s death, the Complainant emailed HR to advise that he may require time off at short notice. The Complainant explained that it was a 3.5 hour drive from his workplace to where his mother resided.  The response from HR was the request that he should wait on site until alternative staff could be redeployed. The Complainant explained that he could not wait due to the gravity of the situation with his mother and on that occasion, he left his position and travelled to his mother.

The Complainant outlined that he emailed HR at 15:11 PM on the 21 February 2022 explaining that he may travel to see his mother at short notice and he would “give plenty of notice to the Respondent’s 24 hour Control centre after he had spoken to his brother or sister that afternoon”. The Complainant telephoned the control section at 20:35 PM which he explained was nine hours before his shift start and outlined that he had to travel home to see his mother and he would not be in attendance for his shift the following morning. He explained that the controller spoke to him in a derogatory fashion and was abusive to him for calling at that hour of the evening when he was not rostered until the following morning.

On 25 February 2022 (Friday) at 16:45 PM, the Complainant emailed HR and stated he would return to work on the following Wednesday, 2 March 2022.

On 28 February 2022 (Monday) the Complainant awoke to 10 missed calls from the Respondent control section. His wife also had a number of missed calls from the control section.  The Complainant explained that his home is located in a rural area and that it had poor mobile phone coverage.

After this incident, the Complainant received an email advising him that HR finished work at 16:00 PM on a Friday. This fact was unknown to the Complainant at the time of his email. He was unaware that no one else was rostered to open the centre at 5:30 AM the following workday. The Complainant was blamed for the fallout due to his non-attendance on the 28 February 2022.

He also explained that in early March 2022 he had a horrendous chest infection. He notified the control centre on Sunday afternoon that he would not be the position to work on the following Monday morning. He received a telephone call from the Managing Director telling him that he had to turn up for his rostered shift. He returned to work whilst still unwell the following Tuesday. During this period of absence, he missed three telephone calls from the Respondent. He felt harassed by them.

Around that time the control section started telephoning the Complainant at 4 AM to 4:30 AM to check that he was going to work for his scheduled shift. On many occasions he only saw the missed calls to his phone when he arrived at his place of work. At that stage he rang the control section. He said he was never late for his shifts. He said he always clocked in at least five minutes early.

On 10 March 2022 the Complainant's wife telephoned the Respondent to inform them that his mother had passed away and he would not be able to attend work. The Complainant emailed HR on the 14 March 2022 to inform them that he would be returning to work on 21 March 2022.

The Complainant received an email on 30 March 2022 advising him of that due to his non-compliance with the Time Gate App used by the Respondent, management had made the decision to change his shift to the evening shift of 16:00 PM to 0:00 midnight which would take effect on 4 April 2022. This meant that a colleague of the Complainant had to swap shifts with him. The Complainant felt that this was a punitive sanction for not strictly complying with a phone app.

In addition, the Complainant explained that this would incur a reduction in his work hours and a financial loss of between €60 and €70 per week.

The Complainant raised a grievance with the HR manager on 30 March 2022. A copy of the grievance email was produced to me. He received a reply on the 6 April 2022 advising that his email was passed to senior management for consideration and that a decision would be put on hold until he was fit to return to work.

The Complainant explained that this left him chronically stressed and crippled with depression. He was forced to take sick leave from 4 April 2022 and was prescribed with medication for anxiety and stress.  He gave evidence that he feared his job would be taken away from him. He explained that he returned to work too early after his mother's death.  He said he “went back earlier than he should have”.

During his period of sick leave, he realised that he would not be in a position to return to work as a result of the treatment by the Respondent. He ultimately tendered his resignation on 6 July 2022.

At that time, he had organised alternative employment which was to start two weeks later.  The new role was on a similar pay to role he had with the Respondent.

In response to my query as to the wording and tone of his correspondence with the Respondent, the Complainant explained that he was very devastated with the loss of his mother. He described it as “the lowest point in his life”. He explained that the communication was not his usual form and that it was out of character.

The Respondent submitted a detailed written submission to the WRC including copies of emails and other documents.

Much of this is not in dispute and had been referred to by the Complainant in his evidence.

The Respondent did not attend the hearing and give evidence.

It is accepted that the burden of proof in a constructive dismissal case is on the Complainant.  This is the opposite of a dismissal case by a Respondent. 

Unfair Dismissals Act 1977 as amended.

“dismissal”, in relation to an employee, means—

(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.

In this case it is not in dispute that the Complainant resigned before utilising the full procedures available to him to examine his grievances. 

This case is similar to the complaint decided by the Labour Court UDD2321 GO-AHEAD TRANSPORT SERVICES (IRELAND) LTD.-v- IAIN SHANAHAN (hereinafter called the Go ahead case). In that case the Labour Court helpfully went through the case law relating to constructive dismissal cases.  It referred to Beatty v Bayside Supermarkets UD142/1987, in referring to the need to utilise grievance procedures where 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”.

It also referred to the ‘Conway’ case where, it was held that the worker had not acted reasonably by resigning before having substantially utilised the relevant internal procedures. This reasoning has been applied to many such cases since, including the often-quoted case of Travers v MBNA Ltd., UD 720/2006.

In the Go- Ahead case, the Respondent had a grievance procedure and the Complainant was aware of the procedure and had lodged a complaint under the procedure. However, he resigned before affording the Respondent the opportunity to address his grievance.

The same events happened in this case.

Having considered the evidence of the Respondent and his complaints regarding contact while he was on sick leave in early March 2022, I too accept that it was perfectly reasonable for the Respondent to advise the Complainant that they would contact him regarding his complaint when he was well again.

As in the Go ahead case, no evidence has been put to me that there was any reason why the Complainant might have concluded that the Respondent lacked the ability to address his grievances.

I have considered the evidence of the Complainant and I find that the issues which he complained of did not meet the test set out in Western Excavating -v- Sharp (1978) namely that the employer was guilty of misconduct which was a significant breach going to the root of the employment contract or which must have conducted itself so unreasonably that the employee cannot be fairly expected to put up with it any longer.

The bar for a constructive dismissal claim is very high. The situation must be intolerable for the employee to continue in employment. I have considered the Complainant's evidence regarding the impact the death of his mother had on him. I consider that this was impactful on him and probably more than events taking place at work.

I am bound by the precedent set out by the Labour Court in cases of this type.  As set out in the Go ahead case “ it unfortunate that an employee should become ill due to events at work but it is still incumbent on any such employee to afford his/her employer the opportunity to address concerns before resigning from employment. To do otherwise, in the view of the Court, falls outside a range of reasonable responses and the Court is obliged to conclude that, as with ‘Conway’, the Complainant has not acted reasonably in resigning without having substantially utilised the relevant internal procedures.

Accordingly, the Complainant has failed to meet what was described in McCormack v. Dunne’s Stores UD1421/2008 as the ‘high burden of proof in cases of claimed constructive dismissal’.”

This complaint is not well founded.

Constructive dismissal.  Resignation while grievance pending