Complainant

Respondent

Parties

Ivan Gaffney

 Bidvest Noonans

Complainant

Respondent

Anonymised Parties

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Representatives

Padge Reck

Emily Maverley ,Ibec

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-00055018-001

10/02/2023

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

CA-00055018-002

10/02/2023

The Complainant started his employment with another entity as a security guard in 2018.  A Transfer of Undertaking took place in June 2019, when the Respondent in this case took over the original entity. The Complainant was paid €12.05 per hour. An in person hearing of the case took place on 15 May 2024.

The Complaint submits that he did not receive a statement in writing of his terms and conditions of employment (CA-000 55018-001).

The Complainant submits that he had to leave his job due to the conduct of his employer or others at work and he had at least 12 months’ service (CA-000 55018-002).

The Respondent disputes the claims in their totality.

By way of background the Complainant submits that he commenced employment with Mitie Facilities in November 2018, as a security guard at a specific location, on a permanent part-time contract that guaranteed him work for 12 hours per week.

In July 2019, Mitie facilities were taken over by Bidvest Noonan, the Respondent. The Complainant submits that he did not receive a contract when the Respondent took over the business. He was informed of his hourly rate verbally, but terms and conditions of employment were not provided in writing. He also submits that he was told that everything would remain the same, but it was not so as in Mitie he was allowed join a union but in Bidvest Noonan he was not.

The Complainant gave evidence on oath about this complaint at the hearing.

The Complainant stated that he could not remember if he had signed a contract with Mitie but he did have a verbal contract with them. When working for Mitie he got a roster outlining his work hours. After the transfer of undertakings, he received text messages telling him his hours.

In cross examination, the Complaint confirmed he had transferred to the Respondent company and, to the best of his recollection he did not receive a contract of employment from them, except for a verbal contract.  He stated that he had not met with the new owners, but he would have confirmed that the terms and conditions were correct.

In closing the Complainant put forward that a contract is a requirement, and he did not get one.

The Respondent submits that the Complainant signed the TUPE Employee Commencement Form and TUPE Consultation Form on 24 June 2019.  The Respondent submits that the terms and conditions as set out in the Complainant’s contract would have been provided by the Transferor at the commencement of the Complainant’s employment, and had he flagged that this had not been done, the company would most certainly have provided them. Notwithstanding this, many of these terms and conditions were established in the Transfer documentation.

Mr William Doyle, a supervisor, gave evidence on affirmation at the hearing.

Mr Doyle stated that the Complainant had never asked him for a contract of employment.

Mr Niall O’Shea, an operations manager for the Respondent, gave evidence on oath at the hearing.

Mr O’Shea stated that normally he would meet with transferred employees after a TUPE had taken place. In this case he thought he had met all the employees that came from Mitie. Mr O’Shea stated that the Complainant would have filled out the TUPE- Consultation Form, himself, but he, Mr O’Shea would have asked the complainant about any anomalies.  Mr O’Shea stated that Bidvest Noonan employees are allowed join a union.

In cross examination, Mr O’Shea stated that he could not say if he had given a contract of employment to the Complainant, however it is the previous contract that applies.

In re-direct evidence Mr O’Shea stated that he had met with the Complainant to go through his terms and conditions and that he was given a welcome pack, which he signed.

I have considered this matter carefully.

The Complainant accepted that he did receive a Welcome Pack when the TUPE took place.

He agreed that he had signed the document, the TUPE – Consultation Form, a copy of which was provided at the hearing. This form contains the lines;

“I can confirm by way of my signature below that all the details provided by my previous employer are true and accurate.  I understand that I am hereby confirming that Noonan will consider the information provided to be an accurate representation of my terms and conditions of employment.”

When an employee transfers in a Transfer of Undertakings situation their terms and conditions of employment remain unchanged from those they enjoyed with the transferor and those they enjoy with the transferee.  As accepted by the Complainant when he signed the TUPE-Consultation Form, his terms and conditions remained unchanged, therefore the transferee was not obliged to provide a new contract of employment to him.  As such the complaint has no merit and fails.

The complaint is not well founded.

In the weeks following the Transfer of Undertakings the Complainant submits that he was employed for less than the stipulated 12 hours per week, in some weeks he got no work at all.  From May to August 2022, he was instructed to work nights on Mondays, Tuesdays, and Wednesdays. He was assured that these times would alternate but this did not happen. Other workers, brought in from outside, were getting 36 to 48 hours per week, while he was still only getting 6 to 12 hours per week.

The Complainant submits that when he complained to his manager about this his manager put him on night shifts at short notice out of spite. This meant he would have to arrive on site within one hour and work all night. 

The Complainant submits that his manager contacted head office saying the Complainant was unreliable, despite him not having missed a single minute up to that point.

On Monday 22 August 2022, the Complainant submits that he came in to do his three nights for which he had been tasked to do for the previous three months only to discover that he had been replaced by someone else, without prior notice or a phone call to tell him that his shifts had changed.  The Complainant submits that this was the last straw for him as it had been progressively leading up to this point in the hope that he would just leave, so he left having in his view been unfairly dismissed in an underhand way.

The Complainant gave evidence on oath about this complaint at the hearing.

The Complainant stated that the reason he left his employment was because of an accumulation of how the Respondent was doing things particularly in relation to his roster and working hours, and how other people were getting hours when he was available.  Some weeks he got no hours at all.

The Complainant stated that on 22 August 2022, the day he left, he had raised his unhappiness at the turn of events, [someone else being in situ to cover his hours], with Mr Doyle, his supervisor, it was not, he said, “the first time people took over my job”.

Following the incident on 22 August 2022, the Complainant stated that he was not contacted by the Respondent for some two months when he was asked if he would work on another site.

In cross examination, the Complainant stated that he had raised his concerns with Mr Doyle but verbally only.  Regarding the 22 August 2022, the Complainant stated that when he arrived the other person “ran out the door”, and the Complainant worked the shift.  The Complainant stated that he had not resigned but rather told Mr Doyle that he had gotten another job but in fact it turned out he had been unsuccessful. The Complainant stated that he told Mr Doyle that he was going to look for another job.

In reply to questions, the Complainant also stated that apart from raising his concerns with Mr Doyle and Mr O’Shea verbally, he had done nothing else to address them or have them addressed.

In closing, the Complainant put forward that when he discovered someone had taken his place, he took it as a sign that the Respondent wanted to get rid of him because he had complained about his hours.

The Respondent submits that on 23 August 2022, the Complainant informed his manager that he was resigning from his position as he had acquired an alternative role in Waterford, some 27 kilometres from the site he had been working.

The Respondent had no reason to expect a resignation from the Complainant, who had not raised an issue with them. The Respondent submits that they acted as a reasonable employer at all times and are unaware of any action that would require an employee to need to resign from their position.

The Respondent submits that the Complainant failed to provide them an opportunity to fully respond to his concerns by failing to use any of the formal channels to seek to address any issues he may have had. 

Mr William Doyle, a supervisor, gave evidence on affirmation at the hearing.

Mr Doyle stated that he had not expected the Complainant to tender his resignation.  He said he had spoken with the Complainant on 22 August 2022, and said that the Complainant was angry that another employee was doing his shift when he arrived at his workplace.  Mr Doyle admitted that it was his fault that this other person had come in to work when the Complainant was meant to be doing the shift.

Mr Doyle stated that the next morning (23 August 2022), at 06.30 he had spoken with the Complainant. He recalled that the Complainant had told him that he had secured another job in Waterford. Mr Doyle emailed Mr Niall O’Shea, Operations Manager, informing him of this development.

Mr Doyle stated that he had not expected this to happen, that he had an “ok” relationship with the Complainant and had no issues with his work or competency.  He stated that the Complainant had told him that the company was bringing in contractors and he was not getting his hours. 

In cross examination, Mr Doyle stated that the Complainant had never asked him to give him more hours.

Mr Niall O’Shea, an operations manager for the Respondent, gave evidence on oath at the hearing.

Mr O’Shea stated that he was the Complainant’s line manager.  He said the Complainant’s resignation came out of the blue, there had been no indication it would happen. The witness stated that the Complainant had not brought any complaints to him about his working conditions; he did not seem unhappy in his role.

In response to a question from me, Mr Doyle stated that apart from telling the Complainant he was sorry to see him go, he had not done anything to try and persuade him to stay.  He said that the Complainant had told him that he had a job elsewhere and he was adamant he was going.

In closing, the Respondent put forward that it was entirely unreasonable for the Complainant to resign his position and in the words of the Labour Court his work-related concerns cannot be converted into the “conduct of the employer” and be used to ground a complaint of constructive dismissal. The Complainant has failed to meet both the contractual test and the reasonableness test.  Additionally, he failed to utilise the internal processes available to him.  In these circumstances he cannot claim he was constructively dismissed.

The complaint is one of constructive dismissal.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340).

“There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.”

The Supreme Court has said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

In this case the Complainant did not dispute that he had not initiated a grievance process in any meaningful way.  He had expressed his unhappiness at the turn of events on 22 August 2022, but only verbally and at the same time as he told his supervisor that he was moving to another job. I do not find the Respondent’s behaviour to have been in any way unreasonable.

Looked at by reference to either of the above tests the Complainant does not come anywhere close to the burden of proof necessary to ground his case.

The Complainant was not unfairly dismissed.

Contract of Employment, TUPE, constructive dismissal,