ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046797
Parties:
| Complainant | Respondent |
Parties | Worker | G4S Solutions Ireland Limited |
Representatives | self | Aaron Shearer BL |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00057594-001 | 07/07/2023 |
Date of Adjudication Hearing: 28/06/2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. I have maintained the anonymity of the Complainant as similar matters have been referred under the Industrial Relations Act 1969.
Background:
This hearing was reconvened initially from the 30th of January 2024, arising from a diary clash on the 9th of May 2024 to the 28th of June 2024.
At the first hearing date an adjournment was given to the Respondent as their HR Director who was directly engaged in the matter now before this tribunal was on long term sick. The Company was asked to ensure that relevant witnesses would attend at a reconvened hearing.
At the reconvened hearing held in person on the 28th of June 2024 the Respondent raised a preliminary matter relating to jurisdiction to hear this complaint as it already had been adjudicated upon and was referred to the Labour Court. In essence the Respondent stated that the Complainant had brought this complaint under a different legal heading of constructive dismissal because he was unhappy with the Labour Court decision. The Complainant had copied and pasted the same narrative into this constructive dismissal complaint that he referred previously to the Workplace Relations Commission and the Labour Court. While the Complainant maintains that this is a new complaint it relates to allegations concerning Natural Justice; Fair Procedures, the right to legal representation, suspended without pay, failure by the Employer to detail with enough particularity the alleged wrongs.
The Respondent stated that the crucial matter was all these points had been adjudicated upon by the Workplace Commission and on appeal by the Labour Court.
The Workplace Commission determined that the Complainant should re-engage with the disciplinary investigation and the Labour Court while awarding the Worker €5000 and criticizing the Company for not providing more detail; also concluded that the Complainant was unwise not to engage in the process.
The Labour Court hearing took place on the 5th of January 2024 and the recommendation issued on the 18th of January 2024:
As stated above, the Worker had already resigned from his employment prior to the date on which the Recommendation issued. The Worker told the Court that he was seeking compensation of €30,000.00 in respect of his loss of earnings while on unpaid suspension over a period of 59 weeks. He made a detailed submission in relation to what he perceived to be a denial of his rights to natural justice arising from the manner in which the Company proposed to conduct the disciplinary investigation into the alleged incident of 10 May 2022. According to the Worker he had not been furnished with details of the allegation against him; was the denied the opportunity to be legally represented in circumstances where he was not a member of a Trade Union and no colleague available to him was trained in the use of online technology; the investigation was not being led by the person he believed to be his line manager; and the person actually appointed to conduct the investigation was not independent because the Worker himself, in his submission, had raised a similar complaint against him some weeks earlier. The Company submits that the details of the alleged incident had been fully communicated to the Worker; that the use of an online platform to conduct meetings, including disciplinary investigations, had become commonplace since the Covid-10 pandemic and it would have been technically possible to view the CCTV footage of the alleged incident in the course of an online meeting; that the Worker had never previously taken issue with the proposed online format and, had he done so at the time, an alternative face-to-face format could have been arranged; the Company offered to appoint a different investigator. Discussion and Decision: The Court does not accept that the Worker was entitled to refuse to co-operate with the Company’s investigation by failing to attend at a scheduled meeting. In circumstances where he had genuine concerns about aspects of the investigation, including the proposed format of the investigation meeting, the proper course of action would have been to attend at the scheduled meeting where those issues could have been ventilated. This would also have afforded the Worker the opportunity to utilise the Company’s internal appeal process and ultimately the State’s dispute resolution machinery if he continued to have concerns. Likewise, the Court does not accept that the Company took sufficient steps to ally the Worker’s concerns about the conduct of the investigation before placing him on unpaid suspension. No explanation was given by the Company at the within hearing as to why, for example, the Worker was not informed in advance of the investigation meeting about the information it had in its possession – if any – that tended to show that the Worker had in fact committed the security breach as alleged. Furthermore, the Worker’s relatively long service with the Company prior to the events of 2022 appears to have been disregarded in the process. Having regard to the foregoing, the Court upholds the Worker’s complaint in part and recommends compensation of €5,000.00 be paid to him for the effects of the Company’s inappropriate action of imposing the sanction of unpaid suspension on him. This level of compensation also takes account of the Worker’s contribution to the situation that came about due to his unwise decision not to engage with the Company’s investigation. In order to decide if this tribunal had jurisdiction to hear the complaint now brought under the Unfair Dismissal Act 1977 alleging constructive dismissal; the Complainant gave evidence over several hours concerning the chronology of events that led him to leaving the Company. The Respondent cross examined the Complainant. The Respondent called no witnesses.
While the Complainant objected to the Adjudicator not allowing the Respondent to cross examine the Barrister for the Respondent, he was allowed to put a question to him concerning the decision to stop paying him. While an answer was provided it does not equate to evidence.
This Complaint had been lodged with the Commission on the 7th of July 2023.
The facts now being relied upon have been determined under the Industrial Relations Act 1969 as a trade dispute.
In a constructive dismissal case, the fact of dismissal is in dispute and the Complainant bears the burden of proof to establish that a dismissal did occur. |
PRELIMINARY MATTER:
In Culkin v Sligo County Council & Anor [2017] IECA 104, the Court of Appeal held that an individual who had brought an unsuccessful claim of discrimination or harassment under the Employment Equality Acts 1986 to 2015 is not automatically precluded from proceeding with personal injuries claim, even where both claims arise out of the same alleged set of facts.
By analogy the Complainant has on the same facts brought an unsuccessful claim to the Labour Court; however, under the Industrial Relations Act 1969 as a trade dispute.
An Adjudication Officer and a Labour Court division have heard the same facts and have made decisions that do not find in favour of the Complainant.
In Culkin the Court stated that:
Similarly, a person who brings a claim for unfair dismissal is not prohibited from bringing a personal injury claim arising out of the same facts. It is acknowledged that section 15 of the Unfair Dismissals Act 1977 prohibits an employee from pursuing both a claim for unfair dismissal under the Act and a claim for wrongful dismissal at common law but, as found in the seminal decision in Parsons v. Iarnrod Eireann, there is no impediment to the Plaintiff pursuing parallel proceedings in respect of “other free standing relief which he can claim at law or in equity”.13 Likewise, in Quigley v. Complex Tooling and Moulding Ltd the Court found
13See Barrington J. in Parsons v Iarnrod Eireann [1997] 2 IR 523, 530. In Parsons the claimant brought proceedings for unfair dismissal and issued proceedings in the High Court for a number of reliefs and in particular damages for wrongful and/or unfair dismissal. In its defence to the High Court proceedings the employer raised an objection seeking to have the claim struck out as it contravened Section 15 (2) of the Unfair Dismissal Act 1977 (as amended). The High Court allowed the objection and struck out the proceedings. On appeal to the Supreme Court, Barrington J noted:
“Section 15 of the Unfair Dismissal Act [1977] provides that the worker must choose between suing for damages at common law and a claim for relief under the...Act. Subsection 2 accordingly provides that if he claims relief under the Act of 1977 he is not entitled to claim damages at common law while subsection 3 provided that where proceedings for damages at common law for wrongful dismissal are initiated by or on behalf of an employee, the employee shall not be entitled to redress under the Unfair Dismissal Act 1977 in respect of the same dismissal”. He continued at p. 530 in respect of the particular case and the manner that when an employee had acquired a common law cause of action prior to his dismissal, this cause of action preceded, and was independent of, his subsequent dismissal and the statutory rights flowing therefrom and that the basis of the plaintiff's cause of action in the then current plenary proceedings was not his dismissal, the manner of his dismissal or any implied principles of fairness surrounding his dismissal, but was a claim founded in negligence, breach of duty and breach of contract and had arisen out of the conduct of the defendant during the course of the plaintiff's employment and was thereby a separate and distinct cause of action to any statutory claim he might have for unfair dismissal.
Culkin can be distinguished from this case as it related to rights guaranteed under European Law and the right to pursue a separate claim for personal injury. This Complaint before this tribunal is the same as that brought to the Labour Court and looks for compensation.
A referral under the Industrial Relations Act 1969 is not binding.
This Tribunal has heard the evidence of the Complainant concerning his right to pursue an Unfair Dismissals Claim; and the facts relied upon are the same facts about the claim for constructive dismissal. The Respondent cross examined him based on his sworn evidence.
Based on sworn evidence the Complainant stated that he continued with this claim because he was unhappy with the Labour Court decision.
Both parties have referred to the Labour Court Recommendation. An employment rights determination is very different to a recommendation where the Court decides on the merits of the claim and either party can accept or reject the recommendation.
Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:
A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.
The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.
The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.
The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:
(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, or
This statutory definition in turn has been elaborated upon to include two tests:
Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):
There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.
In law there is a contract test and a reasonableness test.
The employee argues that by being denied fair procedures and by being suspended without pay both grounds have been met.
In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:
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.
Has a fundamental breach of the contract occurred in this case? Two independent bodies have determined that this Complainant should have engaged in the Company Investigation and that he was unwise not to. On the facts presented at this hearing I concur and that means the threshold that the Complainant must meet either relating to a fundamental contractual breach or unreasonable conduct by the employer cannot be me. That arises as the Complainant significantly contributed to an impasse concerning his refusal to attend an investigation meeting and his continued refusal over many weeks. As he bears the burden to establish that a dismissal has taken place; he cannot do so based on that conclusion.
In Berber the Supreme Court concerning a wrongful dismissal claim detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case:
- The test is objective
- The test requires that the conduct of both employer and employee be considered
- The conduct of the parties as a whole and the accumulative effect must be looked at
- 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.
The conduct of the Complainant in this case significantly contributed to an impasse by insisting that the Employer must meet all his demands before he would attend an investigation meeting. He acted unreasonably by not attending. That did not mean he was bound to accept the procedures adopted by the Company; however, his refusal to engage bordered on obduracy.
The test to be applied is an objective one. I must consider the behaviour of both the employee and the employer. On the facts the employee left his employment of his own accord. The employee’s conduct over many months was not reasonable by refusing to attend a meeting concerning an allegation that he breached an important security protocol.
Looking at the cumulative interactions between the employee and Company, and what the employee views as stonewalling and a failure to hear his grievances does that meet the threshold of unreasonableness? It was the employee in this case that refused to engage and attend a meeting. While the conduct of the Employer may be questioned ultimately the employee unilaterally decided to withdraw from the process and that was not reasonable.
The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that he was dismissed, 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. Therefore, I find that the employee was not unfairly dismissed and dismiss the claim.
Summary of Complainant’s Case:
The Complainant has repeated a chronology of incidents relating to a disciplinary investigation that led to him resigning from the Company. He stated that arose due to the unreasonable conduct of the employer and their actions to stop paying him. |
Summary of Respondent’s Case:
The Employer stated that this matter has already been heard and this tribunal has no jurisdiction to hear the matter. |
Findings and Conclusions:
To hear the preliminary objection to this tribunal hearing the complaint, sworn evidence was given by the Complainant about the chronology of events leading up to his resignation. The Respondent was allowed to cross examine that evidence. There is no requirement to reconvene as what I must determine has the Complainant met the threshold where it was reasonable to resign and that was due to a fundamental breach in a contract term or the unreasonable conduct of the Employer and in turn that was a constructive dismissal. The Complainant has detailed orally for several hours the facts that led him to make that decision. The evidence was cross examined. To reconvene therefore as the matter has been exhaustively dealt with when considering jurisdiction is unnecessary and would serve no evidential benefit to the Complainant. As his oral evidence was made. The Complainant has in fact pursued a very similar complaint under the Industrial Relations Act as clearly detailed in the Labour Court Recommendation and what he now seeks before this tribunal which is compensation for constructive dismissal. The Employer has not accepted that recommendation nor has the Complainant. As the matter referred to the Court is made under the Industrial Relations Act 1969 which relates to the resolving of disputes; I have determined that the complaint can be pursued separately under the Unfair Dismissal’s Act. No witnesses attended the hearing for the Respondent. There is no requirement for them to call witnesses. Has a fundamental breach of the contract occurred in this case? Two independent bodies have determined that this Complainant should have engaged in the Company Investigation and that he was unwise not to. On the facts presented at this hearing I concur and that means the threshold that the Complainant must meet either relating to a fundamental contractual breach or unreasonable conduct by the employer cannot be met. This is so as I have determined that this failure to engage in the process was unreasonable. That arises as the Complainant significantly contributed to an impasse concerning his refusal to attend an investigation meeting and his continued refusal over many weeks. As he bears the burden to establish that a dismissal has taken place; he cannot do so based on that conclusion. The conduct of the Complainant in this case significantly contributed to an impasse by insisting that the Employer must meet all his demands before he would attend an investigation meeting. He acted unreasonably by not attending. That did not mean he was bound to accept the procedures adopted by the Company; however, his refusal to engage bordered on obduracy. The test to be applied is an objective one. I must consider the behaviour of both the employee and the employer. On the facts the employee left his employment of his own accord. Looking at the cumulative interactions between the employee and Company, and what the employee views as stonewalling and a failure to hear his grievances does that meet the threshold of unreasonableness? It was the employee in this case that refused to engage and attend a meeting. While the conduct of the Employer may be questioned ultimately the employee unilaterally decided to withdraw from the process and that was not reasonable. The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that he was dismissed, 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. Therefore, I find that the employee was not unfairly dismissed and dismiss the claim.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Has a fundamental breach of the contract occurred in this case? Two independent bodies have determined that this Complainant should have engaged in the Company Investigation and that he was unwise not to. On the facts presented at this hearing I concur and that means the threshold that the Complainant must meet either relating to a fundamental contractual breach or unreasonable conduct by the employer cannot be met. That arises as the Complainant significantly contributed to an impasse concerning his refusal to attend an investigation meeting and his continued refusal over many weeks. As he bears the burden to establish that a dismissal has taken place; he cannot do so based on that conclusion. The conduct of the Complainant in this case significantly contributed to an impasse by insisting that the Employer must meet all his demands before he would attend an investigation meeting. He acted unreasonably by not attending. That did not mean he was bound to accept the procedures adopted by the Company; however, his refusal to engage bordered on obduracy. The test to be applied is an objective one. I must consider the behaviour of both the employee and the employer. On the facts the employee left his employment of his own accord. Looking at the cumulative interactions between the employee and Company, and what the employee views as stonewalling and a failure to hear his grievances does that meet the threshold of unreasonableness? It was the employee in this case that refused to engage and attend a meeting. While the conduct of the Employer may be questioned ultimately the employee unilaterally decided to withdraw from the process and that was not reasonable. The fact of dismissal is in dispute in this case and the employee has not discharged the burden of proof that he was dismissed, 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. Therefore, I find that the employee was not unfairly dismissed and dismiss the claim.
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Dated: 10-07-2024
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Threshold -Burden of Proof-Constructive Dismissal-Jurisidiction |