Complainant

Respondent

Parties

Thomas  Kasak

Darlex Risk Managment

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Self-Represented

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-00058143-001

05/08/2023

The Complainant commenced employment with the Respondent on 30th June 2022. At all relevant times, the Complainant was engaged as a “security officer”, for which he earned an average weekly payment of €325. The Complainant submitted that he was dismissed by the Respondent on 18th July 2023.

On 5th August 2023, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had unfairly dismissed him by removing him from a contract to which he was assigned. By response, the Respondent submitted that the Complainant was removed from the site on the instructions of a third-party client. They stated that they sought to advocate on behalf of the Complainant, however the decision in relation to the same ultimately was outside of their control.

A hearing in relation to this matter was convened for, and finalized on, 4th March 2024. These hearings were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued submissions in advance of the hearing. These submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his complaint, while a managing director and an operations manger gave evidence in defense.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In circumstances whereby the fact of dismissal was in dispute, the Complainant presented his case first.

In evidence, the Complainant stated that he commenced employment with the Respondent as a security officer in June 2022. At or near the commencement of his employment, the Complainant signed a contract of employment. This contract outlined that the Complainant’s primary place of work was an entertainment venue. At the outset, the Complainant was informed that given the activities of the client, this work would be seasonal in nature.

The Complainant’s employment proceeded without notable incident until mid-2023. At this point, the Complainant noticed that new security guards presented at the client premises that required training. Shortly thereafter, on 12th July 2023, the Complainant was informed that he was no longer required at his place of employment. While the Complainant sought an explanation as to his abrupt removal from his employment, the operations manager of the Respondent consistently ignored him. Finally, towards the end of July, the Complainant met with the operations manager on an informal basis. During this conversation, the Complainant was informed that a complaint had been raised against him by the third-party client and that he would not be permitted to return to the site. During this conversation, the operations manager informed the Complainant that they would seek alternative employment for him or that he could resign his position. Given that the Complainant could not return to his place of work he elected to terminate his employment and refer the present complaint. 

By submission, the Complainant stated that he was removed from his place of work and accused of wrong doing without having an opportunity to defend himself, or having sight of the allegations themselves. He submitted that the Respondent used these issues as a means to remove him from his role without any form of procedure. In such circumstances, the Complainant submitted that his dismissal was unfair for the purposes of the present Act, and that his complaint should be deemed to be well-founded.

From the outset, the Respondent denied the allegations raised by the Complainant regarding his alleged unfair dismissal.

In this regard, they agreed that the Complainant was assigned primarily to the third-party site, and that his employment was relatively uneventful until mid-2023. In evidence, the operations manager stated on that 7th June 2023, he received an email from the client advising of an issue that arose on the site and stating that they had a “problem” with the Complainant. On foot of the same, the witness travelled to the client site in an effort to investigate and potentially resolve the issue. Unfortunately, during this meeting, the third-party client advised that they no longer wished to have the Complainant assigned to their site. By response, the witness stated that he advocated for the Complainant to remain on site for a few more weeks until alternative arrangements were in place. On 11th June 2023, the witness sent a message to the Complainant outlining this position and advising that he would continue to advocate on his behalf. Unfortunately, thereafter the client insisted that the Complainant be removed and that alternative personnel be assigned to the site. As this was ultimately the client’s decision, the operations manager removed the Complainant from the site from 17th July.   

Thereafter, the operations manager sought to secure alternative employment for the Complainant in the area. As this was not the Respondent’s primary region of operation, they were unable to secure a position with a similar consistency of work. In late July, the operations manager met with the Complainant and informed him that they were seeking to secure alternative roles for him. During this conversation the Complainant advised that he wished to resign his contract of employment. As matters transpired, the Respondent lost the client contract shortly thereafter. On foot of the same, the Complainant received correspondence confirming that his contract of employment had been termination on 8th August 2023.

In the present case, the Complainant has alleged that the Respondent removed him from his place of work on the foot of unproven, unfounded allegations. In circumstances whereby the Respondent could not offer the Complainant a reasonable alternative, the Complainant believed his contract of employment to be terminated. In denying this allegation, the Respondent submitted that a third-party client demanded that the Complainant be removed from their site. In this regard, they submitted that they attempted to source alternative work for the Complainant, however he refused to engage in this process, and instead elected to refer the present complaint.

From the outset, a degree of confusion exists between the parties as to whether the Complainant was dismissed by the Respondent, or whether he resigned his employment. In this regard, it is noted that the Complainant was engaged as a security officer and primarily assigned to the client site. However, once the Complainant was removed from this site, this did not serve to automatically terminate his contract of employment. Rather, it is apparent that following his removal, the Complainant remained an employee of the Respondent and could be assigned further work. By submission, and in evidence, the Complainant asserted that he sought to terminate his employment during the informal meeting with the operations manager in July 2023. This was the state of affairs when the Complainant referred the present complaint, and clearly, he believed his employment to be conlcuded at this stage. Having regard to the foregoing, the present complaint is one of constructive dismissal, with the Complaint bearing the consequent burden of proof in this regard.

In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows,

“…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 Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court 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 Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘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. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held 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 UD 474/1981. 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 matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

And,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

Regarding the present case, the Complainant has alleged that the Respondent acted unfairly by summarily removing him from a client to which he had been assigned. From the evidence of the parties, it is apparent that the Respondent received a complaint from the client regarding the Complainant. The evidence of the Respondent was that they met with the client in an effort to resolve the matter, however they remained steadfast in their wish to remove the Complainant.

It is an unfortunate reality of such commercial arrangements that a client may simply insist that a certain individual be assigned elsewhere without adhering to any form of internal procedure or respecting the rights of the individual in question. This undoubtedly creates an unfairness towards the employee, in that they may be accused of wrong-doing and may suffer the detriment of having their place of work changed without any opportunity to defend themselves or clear their name. Whilst this is undoubtedly unfair, the cause of the unfairness does not rest with the Respondent, but with the third-party client, over which they have limited to no control. This is not to say that in such situations, the Respondent has no obligation towards their employee. In this regard, they would be expected to ascertain as much information as possible, advocate on behalf of their employee and make all reasonable effort to secure an alternative engagement. In the present case, it is apparent that the Respondent sought to meet with the client in question and advocate on behalf of the Complainant, nonetheless the decision to remove him from the site in question ultimately lay with the client and was outside of the control of the Respondent.

Thereafter, it is apparent that the Complainant raised informal complaints regarding his treatment and that manner of his removal. In the weeks following the same, the Complainant met with a representative of the Respondent and discussed potential alternative assignments. During this meeting, it is apparent that the Complainant advised that he was not interested in such assignments, and in this regard it is noted that they involved fewer, less consistent hours, and concluded that his employment with the Respondent was at an end.

The Complainant’s contract of employment, which was opened as part of the proceedings, sets out a detailed grievance procedure in respect of such matters. In this respect, it is common case that the Complainant did not engage with the same or seek to formally address his concerns with the Respondent in this manner. Having regard to the authorities cited above, and in circumstances whereby the Complainant cannot demonstrate any substantive engagement with the Respondent’s internal procedures, I find that the Complainant has not established that he was unfairly dismissed for the purposes of the impleaded Act. As a consequence of the same, I find that his complaint is deemed to be not well-founded.

I find that the Complainant was not unfairly dismissed, and his complaint is not well-founded.

Assignment, third party, constructive dismissal