Complainant

Respondent

Parties

William  Westlake

Rentokil Initial Ltd

Representatives

  Self – represented

Grainne Moran, The HR Suite

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-00057633-001

11/07/2023

The Complainant commenced his employment with the Respondent on 18 July 2022.

He left his employment on 21 July 2023.

On 11 July 2023, the Complainant referred his complaint to the Director General of the WRC alleging that he had to leave his job due to the conduct of the Respondent.

The Respondent rejects the claim.

The Complainant submits as follows.

The Complainant commenced his employment with the Respondent on 18 July 2022 as a Service Driver.

The Complainant submits that he received 2 weeks training. The Complainant submits that each month he filled in the required form regarding equipment that he needed.

The Complainant submits that he was informed at the interview stage that he would be provided with a suitable vehicle. The Complainant submits that initially he was given a hire van which was far too small for the workload, was not fitted out for purpose, and it was extremely difficult to have all the necessary equipment and mats on board and to load/unload what was required for each call. The Complainant submits that, as a result, the edge of the door bashed into his left shoulder and gave him a great deal of pain on at least two occasions. The Complainant had also fallen out of the side door on many occasions due to having to clamber over dirty mats and his foot getting caught in the open bag for the smaller sanitary waste bags to be placed in.

The Complainant submits that he relayed this to the Respondent at various times throughout his employment.

The Complainant submits that, after two weeks of working on his own, he told his Team Leader, Mr Billy Roberts and the Operations Supervisor, Ms Caroline O’Riordan that he could not work under those conditions and gave his notice to leave. He also informed the Respondent of the injury to his left shoulder. At no time was he asked to go to a doctor or to fill in any form regarding the injury.

The Complainant submits that he received a new van that week which was far better in size but had not been retrofitted for the workload. The Complainant, however, agreed to continue working as he enjoyed his work.

The Complainant submits that he worked under these conditions for a year, his shoulder did give him pain at certain times, but he just got on with it. He never had a day off sick, was never late, completed all his work every month, and received his full bonus every month. He submits that he was informed by his Team Leader that the company was happy with him. The Complainant expected to be in this job until retirement. The Complainant completed the “train the trainer” course, which meant he could now train new starters, and he did train one new starter.

The Complainant submits that everything changed when a new CEO took over. When one of the drivers that worked in his area left, he was not replaced. Instead, the Respondent decided to move all the rounds and increase the workload for some drivers, but not all. The Complainant was one of the drivers that had to take the workload from two drivers that covered his area, and the initial amount of extra work equated to a 300% increase in calls for the Complainant.

The Complainant submits that he told his Team Leader and the Operations Manager that it was an impossible task. He could not complete that amount of calls each week/month, he would also lose his bonus, and with his shoulder injury he simply would not be able to cope.

The Complainant submits that the Respondent subsequently changed this, and he was given 200% extra work. The Complainant submits that nowhere in his contract did it state that the company could increase the workload by this amount. The Complainant could not do this as he would only be damaging his shoulder further.

The Complainant submits that he  visited two doctors in his GP practice on two occasions who informed him that he had a damaged tendon rubbing against his collar bone. This was causing pins and needles in his hand when driving for long periods. The Complainant’s doctor signed him off for a week but stated that this was an injury that does not go away quickly. The Complainant contacted his Team Leader and gave him the cert and the details about his shoulder.

The Complainant submits that the only recourse was to visit an occupational therapist. The Complainant asserts that his doctors stated that he should not be lifting heavy mats.

The Complainant submits that he informed his Team Leader and the Operations Manager of every step he took in this matter. Two days after his informing the Respondent that he had been signed off for a month the Respondent started to “bombard” him with emails to get him to sign a form to visit the company doctor. The Complainant submits that his contract stated that he would be requested to visit the company doctor after 26 weeks of being out of work. The Complainant found this to be quite offensive and told the Respondent that he would have no problem seeing an occupational therapist who could give a detailed report of his injury, but he had already seen a doctor. No appointment was ever made by the Respondent to see an occupational therapist but instead the Complainant received a form to sign to see the company doctor on a daily basis.

The Complainant submits that he had a number of video meetings with his Team Leader and the Operations Manager concerning this injury. On one occasion HR was also in the meeting, and the Operations Manager stated that the Complainant was offered occupational therapy which he refused. The Complainant submits that he had never been offered such. He did, however, state that he would be quite prepared to visit an independent occupational therapist, but it was never offered.  He submits that the Operations Manager was not very pleasant to him. He got the impression that she did not want him to work at all, even though the company has staff who do bins only.

The Complainant submits that the Respondent decided to put another driver with him to do the mats and the Complainant would do the bins. This lasted two days before the Respondent took the other driver away and the Complainant was sent to do bins in other places. After two days (Tuesday), the Operations Manager contacted the Complainant and informed him that the other driver would not be with him anymore and that he was to go home without pay. The Complainant submits that he had no alternative but to go back to his doctor and have them sign him off for the month. Otherwise, he would have no money coming in.

On Friday of that week the Team Leader contacted the Complainant and informed him that the other driver would be back to assist him the following Monday. By this time, the Complainant submits, he had enough of being persecuted by the Respondent and he gave a months’ notice.

The Complainant submits that he has been harassed by the Respondent by email and video calls for an injury that occurred whilst working for the Respondent.

The Complainant submits that he is nearly 64 years of age and thought this job would last until his retirement, but now he found himself unemployed with an injury that no employer wants to take on. The Complainant submits that he informed the Respondent that he had no problem doing as he had been doing the last year, as the workload was bearable, but to increase it by 100% was not feasible. The Complainant felt that he had been treated most unfairly and he was given no alternative but to resign his position.

Summary of direct evidence and cross-examination of the Complainant

At the adjudication hearing, the Complainant gave sworn evidence reiterating the contents of his written submission.

In cross-examination, the Complainant stated that when his workload was increased, he spoke with the Operations Manager and his Team Leader. He said that his workload was reduced then but was twice as much as previously. He said that it was nothing new to him that the plan was faulty.

The Complainant was asked if the Respondent was supportive after he submitted his cert. He said that his Team Leader and the Operations Manager kept ringing him asking what he was doing, where he was.

The Complainant said that he raised the health and safety issues as he had 20% of the equipment he required.

The Complainant confirmed that he did not make a complaint under the bullying and harassment policy and did not raise a grievance. He confirmed that he received the relevant policies.

The Complainant was asked if there were any other actions the Respondent could have undertaken to prevent his resignation. He said that the Respondent should have referred him to an occupational therapist.

He was also asked if there was anything the Respondent could have done in order for him to retract his resignation. He again replied that the Respondent should have sent him to an occupational therapist.

When asked what did the Respondent do incorrectly when dealing with his health issue, the Complainant said that the calls from the Operations Manager checking where he was and the meetings were harassment. He disagreed that it was “hands on management”.

The Complainant disagreed that his decision to resign was made hastily. He said that he anticipated financial losses as a result of the changes. He based his decision on the future expectations of his financial loss.

It was put to the Complainant that he did not want to return to work even if his shoulder got better. He replied that it was a long-term injury.

It was put to the Complainant that his contract states that he could be seen by the company doctor at any time.

The Complainant confirmed that he was on Illness Benefit since he left until 2 January 2024 when he commenced new employment. The new job entails a higher salary. The Complainant said that he worked for 3 days in September 2023 while on Illness Benefit.

The Complainant confirmed that he received a contract, a grievance procedure and a bullying and harassment procedure. He confirmed that he did not invoke either of the procedures.

Ms Moran, on behalf of the Respondent submits  as follows.

BACKGROUND

The Complainant was employed as a Customer Delivery Representative in the Initial Hygiene Division, since 18 July 2022.

PRELIMINARY ISSUE

The complaint was submitted to the WRC on 11 July 2023. The Complainant submitted his resignation to the Respondent on 23 June 2023 and remained in employment until 21 July 2023

Section 8 (2) of the revised Unfair Dismissals Act (2007) states:

“A claim for redress under this Act shall be initiated by giving a notice in writing ………… within the period of 6 months beginning on the date of the relevant dismissal”.

In the Employment Appeals Tribunal Case No. UD2049/2011 (Caragh Neeson and John O'Rourke & Sean O'Rourke Chartered Accountants), the respondent contended that the Tribunal did not have jurisdiction to hear the claim under the Unfair Dismissals Acts 1977 to 2007 as the claim had been lodged while the claimant was still in the employment of the respondent.

The Tribunal found that the complaint had not been lodged in accordance with section 8(2) of the Unfair Dismissals Acts, 1977 to 2007 and so the Tribunal could not accept jurisdiction to determine the substantive case. The Tribunal noted that “Furthermore, were the Tribunal to look with leniency on premature claims the system could well become clogged up with claims based on the expectation that a dismissal might occur sometime in the future which could be later withdrawn.”

The Respondent submits that in the instant case, the Complainant has submitted his complaint prematurely and so has not complied with the requirements of the Acts to have this complaint heard.

RESPONDENTS FACTUAL ACCOUNT OF THE CASE:

The Complainant was on certified sick leave from 24 May 2023 to 2 June 2023 due to a ‘Medical Condition’. The Complainant returned to work (after bank holiday) on 6 June 2023. A Return-to-Work interview was held by the Complainant’s Team Leader, Billy Roberts with the Complainant and no issues were raised by the Complainant. The Complainant submitted a medical certificate to the Respondent stating he was ‘to avoid heavy lifting for the next month’, from 16 June to 16 July, due to shoulder pain.

The medical issue with the Complainant’s shoulder was never reported as a workplace injury by the Complainant through the Respondent’s reporting process, (this is known as SINA, it is a phone-line to report workplace accidents and injuries and all employees are appraised of this process at the commencement of their employment and it is heavily promoted throughout the organisation for example on signage and stickers on vans etc.)

The Company held health and welfare meetings with the Complainant on 19 June and 23 June 2023. The purpose of the meetings was to discuss matters around the Complainant’s fitness and capability in relation to his job role and the supports the Respondent was putting in place to both assist him in the workplace and aid his recovery. The Complainant was requested to attend an occupational health assessment in these meetings and in follow-up correspondence from the HR Department but did not sign consent form for same. The Respondent was doing everything it could in terms of reasonable accommodations and adjustments regarding the Complainant’s shoulder pain.

The Complainant tendered his resignation via email on the morning of 23 June 2023, stating that he was giving one month’s notice, and in the meeting of the same date he re-confirmed his resignation.

On Friday 23 June his supervisor, Billy Roberts on behalf of the Respondent emailed the Complainant the details of a support plan whereby they had assigned another employee (GF) to assist the Complainant with lifting etc. as and from the following week. This plan was put in place on Monday 26 June 2023.

A Senior Manager in the Respondent company, Lorraine Smyth, wrote to Complainant later in the day on 23 June 2023, outlining the support the Respondent was putting in place for him and outlining the reasons for the occupational health assessment and asking if he wished to re-consider and retract his resignation as it was not the only option available to him.

The Complainant sent an email back to Lorraine Smyth on 24 June 2023 but did not retract his resignation.

Unfortunately, GF was not available to assist the Complainant on Tuesday 27 June 2023 (after the Complainant’s resignation), due to an unforeseen absence due to certified illness. A meeting was held with the Complainant, and he was advised that due to the helper not being available, that the Complainant was to be put on unpaid sick leave by the Respondent to protect his health and welfare. The sick leave is unpaid as per the terms of his Contract of Employment. The Company stated they would be back in touch with the Complainant as soon as possible to get him back working with the necessary supports in place.

The Complainant’s Team Leader phoned the Complainant on Friday 30 June 2023 to advise him that the support plan was being put back in place the following Monday, GF was now available to assist him. Mr Roberts outlined the work plan for the following week. However, the Complainant re-confirmed his resignation on 30 June 2023 verbally on this phone call and said that he had been signed off by his doctor for the next month and would not be returning to work at all. The Complainant re-confirmed this via an email to Mr Roberts. The Complainant declined to submit a medical certificate but stated he would do so if the Respondent reimbursed him a sum ranging from 15 to 25 euro.

The Respondent placed the Complainant on sick leave for the remainder of his employment. The Respondent confirmed acceptance of the Complainant’s resignation by issuing a ‘Leaver Letter’ to him on 4 July 2023, confirming his end date as being 21 July 2023.

LEGISLATION:

Constructive Dismissal, Unfair Dismissals Acts 1997-1993, Section 1:

“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”

No dismissal occurred in this case. The Complainant resigned from his position with the Respondent of his own accord.

Having regard to all the facts the Respondent is of the belief that there was no conduct by the Respondent that justified the Complainants decision to regard himself as constructively dismissed as defined in the Unfair Dismissals Acts

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

RELEVANT CASE LAW :

Contract Test: Does the employer’s conduct amount to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position? This requires that an employer 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” as held in Western Excavating (ECC) Ltd. v Sharp.

Reasonableness Test: The conduct and reasonableness of the Respondent is a crucial factor in order to ascertain if the Complainant had no option but to terminate the employment. This was discussed in Joyce V Brothers of Charity (2009) E.L.R 328:

“It would appear to this division of the Tribunal therefore that it must be satisfied that the employee is either entitled or is acting reasonably in terminating the contract. In order for an employee to meet either of these criteria (Section 1 (b) of the Unfair Dismissals Act 1973 -1993) the conduct referred to in the Act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee”.

In Berber v Dunnes Stores Finnegan J stated: “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 as such that the employee cannot be expected to put up with it”.

It is the Respondent’s assertion that the Complainant resigned during the course of a process and dialogue where the Respondent was regularly and wholeheartedly engaging with him in relation to the following.

The Complainant had presented medical certification applicable from 16 June 2023, from his GP, which rendered him capable only of undertaking light duties.

Bearing in mind the welfare, health and safety of the Complainant at all times the Respondent undertook the following actions with view to supporting the Complainant in his recovery whilst at the same time facilitating work arrangements around his medical condition.

This process involved a series of meetings with the Complainant which involved three different managers together with the involvement of the HR Department, thus demonstrating the Respondent’s commitment in both time and resources to assisting the Complainant.

The Respondent arranged work rosters so as to ensure the Complainant was accompanied by a colleague who could assist him with lifting. This was obviously preferable to placing the Complainant on sick leave, as same would have been unpaid given he had utilised his entitlement to SSP for 2023. As the Complainant was unfit for full duties, this was an interim measure to ensure the Complainant was able to remain at work whilst the Respondent sought professional medical advice (via a referral to an Occupational Health doctor) as to the best course of action going forward in relation to the Complainant’s fitness for the job role and any recommendations the doctor may make in relation to any reasonable accommodations the Respondent could possibly review or undertake and/or any supports that could be put in place to assist the Complainant in his recovery.

The Complainant resigned his employment on the morning of Friday 23 June 2023 prior to him being informed of the work-plan for the following week (week-commencing Monday 26 June), which included the Respondent assigning a colleague to help him with lifting tasks.

The Complainant stated that he would not comply with the Respondent’s request to undertake an assessment with an Occupational Health doctor. The Complainant asserted that his GP’s certification should be ample for the Respondent, and, in his view, he should not be required to visit a different doctor on behalf of the Respondent and he refused to do so. The Complainant said he would visit an ‘Occupational Health Therapist’ but not a doctor. However, the Respondent or its management has no medical expertise and is not competent or empowered to make a direct referral to any allied health professional such as an occupational health therapist. The first port of call for the Respondent where its employee’s health is concerned is always to get the recommendations from a doctor who is qualified in occupational health and who will direct any appropriate referrals thereafter. There was dialogue around all of the above at the meetings held with the Complainant on 19 June 2023 and on 23 June 2023. Meeting notes were exhibited at the adjudication hearing.

On the second day (Tuesday 27 June 2023) of assistance being rendered to the Complainant by his colleague GF, unfortunately GF was absent from work due to unforeseen certified medical absence. Unfortunately, but to protect the Complainant’s health and so as not to exacerbate his medical condition and knowing he was not fit for full duties, the Respondent had to convene a meeting with the Complainant and advise him that he would be placed on sick leave. This applied for the remainder of that week (4 days). This sick leave was unpaid as the terms of the Complainant’s contract only entitle him to company sick pay after 2 years’ service, and as per above he had utilised his SSP entitlement for 2023. Had the Complainant been absent from work due to illness for any reason at that time, the absence would have been unpaid under the terms of his contract of employment. It did not pertain, in particular to this given set of circumstances.

The Complainant is stating that he was aggrieved that he was on unpaid sick leave. It is important to note that the Complainant tendered his resignation some 4 days BEFORE the above events. In any case there was nothing the Respondent could do to change the sick leave arrangements, as the Respondent was acting within the terms of his contract of employment. The Complainant would be required to claim Social Welfare (Illness Benefit) the same as any other comparable employee for any period where he was unfit for work and indeed stated in an email that he intended to do so.

At the same time the Complainant refused to see the company doctor. Despite this set of circumstances which left the Respondent’s hands tied in terms of next steps, the various managers continued to engage with the Complainant culminating with a phone call between the Complainant and his Team Leader on 30 June 2023, where the Complainant re-confirmed his resignation, despite the Team Leader advising him of the detailed work plan for the following week with GF being assigned to assist the Complainant, and this meaning that the Complainant was only actually on unpaid sick leave for 4 days in total Tuesday 27 June to Friday 30 June 2023.

Despite meaningful dialogue continuing apace, the Complainant tendered his resignation on 23 June 2023 via email and re-confirmed his resignation on the same date at a pre-planned meeting.

Acting swiftly on the date of the actual resignation 23 June 2023, Lorraine Smyth, Central Operations Manager for Rentokil, Republic of Ireland, wrote a detailed email to the Complainant reiterating the reasons for the Respondent requesting the Complainant to attend an Occupational Health doctor, outlining once more the Respondent’s desire to assist the Complainant in his recovery from his shoulder issue and the necessity to get a medical opinion around lifting capabilities. In the same email Ms. Smyth also assured the Complainant that he would have another driver helping him the following week and that he should refrain from any physical work regarding mats and also that the Respondent was organising a manual handling course for him. Ms Smyth ended her email by asking the Complainant to reconsider his resignation and assured him of the Respondent’s support and that it did not want him to feel he had no other option but to resign.

Notwithstanding the above, the Complainant re-confirmed his resignation on a phone call with his direct Supervisor Mr Roberts on 30 June 2023.

The Respondent wrote to the Complainant on 4 July 2023 with a ‘Leaver letter’ confirming the details of his resignation and his end date of 21 July 2023

During all of the above interactions, the Complainant had the opportunity to reconsider / retract his resignation.

The Complainant had the alternative option of remaining in employment, and if he was not happy with the support or the arrangements the Respondent was putting in place, he could have submitted a grievance under the Grievance Procedure which was issued to him and accepted by him in July 2022.

If he was not fit for work and not confident in carrying out his duties from a health perspective the Complainant could have remained on certified sick leave until such time as he was fit for work and/or engaging with the Respondent and the company doctor to find a way to get him back into the workplace. During the period of sick leave, he could have claimed Illness Benefit. He did not have to resign his employment to do so.

In Daniel 0’ Gorman v Glen Tyre Company Limited (2010) UD2314/2010 the Complainant initiated a claim for constructive dismissal after resigning due to work related stress, claiming an excessive workload, exclusion and being subjected to bullying, harassment and aggressive behaviour. In deciding that he was not constructively dismissed the Tribunal held:

“It is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues.”

The Tribunal went on to find that there was:

“a duty to inform the employer why the claimant was suffering from stress and should have informed him that the claimant felt he was being subject to behaviour that amounted to bullying, harassment and exclusion. Their failure to do so left the employer powerless to rectify the situation”.

Commenting on the burden of proof the Tribunal stated:

“the burden for the claimant is an extremely high one….the claimant must show that there has been a significant breach going to the root of the contract, which said breach would prevent the claimant from carrying out his contractual duties.”

“The tribunal examined the conduct of both the employee and employer together with all the circumstances surrounding the termination. Having done so cannot establish that the claimant’s decision to terminate the contract was a reasonable one”.

In order to successfully satisfy the burden of proof in a constructive dismissal case the Complainant must establish that he brought his concerns to the Respondent’s attention and exhausted all internal avenues to resolve any issues. Resignation as a step should only be taken as a last resort, when all other avenues for resolving the issue have been exhausted. This did not happen in this case.

In this case the Complainant rendered the Respondent powerless to rectify the situation as he did not invoke internal grievance procedure in advance of resigning. It is clear that efforts were underway by the Respondent to both protect the health and welfare of the Complainant and ensure that he was able to stay in the workplace with support being provided around his medical issue. Within the space of just 1 week the Respondent had committed significant time and resources to these efforts and indeed the Respondent continued their efforts over a further week, despite the Complainant having submitted his notice of resignation. The refusal of the Complainant to attend an assessment with an Occupational Health doctor coupled with his resignation, effectively hampered the Respondent’s efforts to support him.

The Complainant was extremely hasty in his decision to resign as same was tendered only 1 week after he submitted the medical certificate referencing light duties and the Complainant did not act reasonably in not affording the Respondent ample time and opportunity to address his concerns.

The EAT confirmed the above 0’Gorman v Glen Tyre decision in Harrold V St. Michael’s House (2008) E.L.R. 1:

“The Tribunal finds that there has been a consistent pattern of lack of engagement by the claimant with the respondent’s grievance procedures. The Tribunal consequently finds that the claimant acted unreasonably in terminating his employment contract with the respondent. The claim for constructive dismissal by the claimant under the Unfair Dismissals Acts 1977 to 2001 must fail”.

The Tribunal continued:

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer's grievance procedures in an effort to resolve his grievance. The duty is an imperative in employee resignations”.

The Complainant raised his issues internally with regard to the medical condition with his shoulder affecting his capability at work and the Respondent was working to resolve these issues. The Complainant did not engage fully in the process as he refused to attend an occupational health specialist. If he was dissatisfied with the Respondent’s support, the Complainant did not raise a grievance via the internal grievance procedure so as to give the Respondent opportunity and indeed further time to resolve same.

MITIGATION OF LOSS

The Complainant has indicated that he has taken up a different type of employment following a duration of 6 months from his resignation from the Respondent. Prior to this, as evidenced in an email to the WRC and to the Respondent, the Complainant states he was on Illness Benefit for a period of 6 months. Thus, it is the Respondent’s position that the Complainant was not available for employment from the date of his resignation up until January 2024, by reason of incapacity and therefore was not in a position to mitigate his loss. Therefore, no loss was incurred by the Complainant by way of him resigning his employment with the Respondent.

CONCLUSION

The facts of the case are as follows:

·        The Respondent has not breached the Complainant’s contract of employment in any way.

·        The Respondent has conducted themselves in a reasonable manner at all times.

·        The Complainant has not demonstrated that his conduct in resigning from his position was reasonable.

·        The Complainant could have taken one and/or more possible other courses of action other than resigning from his position:

Engage in medical assessment with Occupational Health so the Respondent could be medically appraised as to the best course of action in supporting the Complainant at work.  Invoke the grievance procedure.

Remain on certified sick leave whilst the above was being resolved and undertaken, if he felt he was not safely able to carry out the tasks of his job role.

·        The Complainant acted overly hastily in tendering his resignation and did not retract same when the Company re-iterated its commitment to resolving the issues he had raised.

Summary of direct evidence and cross-examination of Mr Billy Roberts, Team Leader

Mr Roberts was the Complainant’s direct supervisor. He said that he conducted the return-to-work meeting on 2 June 2023. He stated that he asked the Complainant if there is anything the Respondent could do regarding his absence. The Complainant replied that there was not. Mr Roberts said that at the time the Complainant did not raise any issue regarding an injury at work. He did not disclose the nature of his condition and said that it was just pain in his shoulder.

Mr Robert said that until the cert of 16 June 2023, the Complainant worked as normal.

Mr Roberts said that a meeting was arranged on 19 June 2023 to put a plan in place, to understand what light duties meant in the context of the Complainant’s health issues.

Mr Roberts said that he was shocked to get the Complainant’s notice. The Complainant was told at the first meeting that a plan would be put in place for him. He said that he continued with the plan. A decision was made that a colleague would assist the Complainant and would do the lifting part of the job. The plan was in operation on Monday. However, the colleague in question was out sick from Tuesday. The Respondent had an online meeting with the Complainant on 27 June 2023 regarding the colleague’s absence.

Mr Roberts also said that the Complainant was asked to attend the occupational health specialist. The Respondent could not have done anything else.

Mr Roberts said that the Complainant did not tell him anything about his shoulder injury in May/June 2023 and did not report a workplace accident.

Mr Roberts said that they had conversations about “bits and bobs”, but the Complainant never raised a grievance about any aspect of his work.

In cross-examination, Mr Roberts agreed that he had conversations with the Complainant about his shoulder pain, but it was never distinctly said that it was a work-related injury. He said that, to the best of his knowledge, the cert did not say that it was a work injury. Mr Roberts further said that the Complainant refused to follow the Success In No Accident (‘SINA’) protocol.

Summary of direct evidence and cross-examination of Ms Caroline O’Riordan, Operations Manager

Ms O’Riordan said that once the medical cert recommended light duties, a meeting was arranged as the Respondent was concerned about the Complainant’s health and the possibility of him hurting himself further. Ms O’Riordan said that she had conversations with HR and Health & Safety to put a plan in place. The Respondent did what it could, and she was shocked to see that the Complainant handed his notice.

Ms O’Riordan said that there was another meeting and a phone call to the Complainant, but he would not return. He was out sick. He resigned before the plan was up and running.

With regard to the workload, Ms O’Riordan said that to improve efficiency some changes were introduced. She said that a review was undertaken to re-route the whole country according to the postcodes. When re-routing was considered, the Respondent took advice from the team regarding the number of calls etc. The management had conversations with drivers. A preliminary detailed plan was designed and implemented after the June 2023 public holiday. Ms O’Riordan said that there was a bit of coming and going between the drivers and some emails were received from the Complainant and others. Ms O’Riordan said that the Respondent did not let anyone go or lost anyone as a result.

Ms O’Riordan confirmed that the Complainant was not up and running with the new plan before he was put on light duties. There was no feedback from the Complainant that he could not work as per the new plan as he was put straight on light duties.

Summary of direct evidence of Ms Lorraine Smyth, Central Operations Manager

Ms Smyth said that the UK and the Irish teams have extensive expertise and presided over the re-routing project. She said that feedback was taken from the staff. The changes would not be unreasonable. The process of completed in November 2023 and the plan remains in place since.

Ms Smyth said that the Respondent was very engaged in the process of supporting the Complainant. She wrote a detailed email to the Complainant. She wanted to make sure that his decision to resign was not an immediate hurried reaction.

The Complainant chose not to cross-examine Ms Smyth’s evidence.

Preliminary matter

The first issue to be decided is whether I have jurisdiction to adjudicate this claim. The Respondent submits that the complaint was submitted before the effective date of dismissal, being the date when the notice period expired and, therefore, has been submitted before the dismissal of the Complainant.   

Section 8(2) of the Unfair Dismissals Acts provides as follows:

“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a)   within the period of 6 months beginning on the date of the relevant dismissal,…”

The effect of a premature lodgement of a claim with the Employment Appeals Tribunal was considered by the High Court in Brady v Employment Appeals Tribunal [2015] 26 ELR 1. In that case the employee was dismissed by reason of redundancy on 16 December 2011 and his claim was lodged with the Tribunal on 23 December 2011, which the respondent contended was prior to the statutory date of dismissal when the statutory notice period was taken into account, which in the particular circumstances was 30 December 2011. In finding that the lodgement of the claim on 23 December was not premature where it was lodged during the notice period where termination was imminent Barrett J. focused on a number of facts.

In paragraph 8 of his judgment, Barrett J stated:

“8. A number of issues come into play at this point. The first is that prescribed time periods are typically intended to thwart the tardy, not punish the prompt. The second, is the longstanding principle of equity, good since at least the time of Smith v. Clay (1761) 3 Bro CC 639n, that *Equity aids the vigilant, not the indolent*. The third is the practical issue of whether a person, here the Employment Appeals Tribunal, can be said not to have received notice within a prescribed period, if it had notice immediately prior to, at the commencement of, and throughout that period. It seems to the court that in the particular circumstances of this case it would be absurd to hold that where the Employment Appeals Tribunal had notice of the claim at the commencement of, and throughout, the six-month period, that Mr. Brady should be denied to opportunity to bring his claim because the Tribunal, through no fault of Mr. Brady, may also have had notice of the claim immediately prior to the applicable six-month period.”

“ Moreover, the court considers that in reaching this conclusion no violence is done to the language of the Act. Section 8(2) requires that notice be given within the period of six months from the date of dismissal. It appears to the court that in the circumstances of this case, giving notice to the Tribunal on one date such that it has notice on another date, is within the scope of the legislation.”

At paragraph 9 of Barrett J’s judgement, he stated:

“Of course there will be some boundary in time and some circumstances in which an ostensibly premature notice will be found in fact to have been premature and thus not duly lodged within the appropriate time period for the purposes of s.8(2).”

The Respondent cited the decision of the Employment Appeals Tribunal in Neeson v O’Rourke & O’Rourke Chartered Accountants UD2049/2011 where it was held that the intention of section 8(2) of the Act “demonstrate[d] a manifest intention by the legislature to preclude claims being lodged before the dismissal date”.  The Tribunal in Neeson considered the decision of the High Court in Brady v Employment Appeals Tribunal [2015] 26 E.L.R. 1.  The Tribunal quoted paragraph 8 of the judgment of Barrett J, as above before going on to contrast the wording of section 8(2) with the previous wording and the insertion of the words “beginning on” in the amendment.  The Tribunal noted that the complaint in the Neeson case had been lodged with the Tribunal twelve weeks before the date of dismissal whereas in the Brady case and in Matthews v Sandisk International Limited UD331/2010 (which Barrett J found supported his conclusions) the complaints were respectively lodged one week and two and a half weeks before the respective dates of dismissal.

Examining the circumstances of the within case, I note that the Complainant handed in his resignation on 23 June 2023 giving one month’s notice. The Complaint was asked to reconsider his decision to resign but he did not indicate that he would be willing to withdraw his resignation. The Complainant referred his claim to the Director General on 11 July 2023, less than two weeks prior to the expiry of his notice.

I am cognisant of the finding and judgement of a higher court, and I find that I have jurisdiction in the matter and the complaint is validly before me.

Substantive matter – constructive dismissal

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

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

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(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.”

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act (as quoted above).

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332.  It comprises of two tests, referred to as the “contract” and the “reasonableness” tests. It summarised the “contract test” as follows:

“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 other performance.” 

An employee may be entitled to terminate the contract where the employer engages in conduct which results in a fundamental breach of the contract, or which indicates that the employer no longer intends to be bound by the terms of the contract.

The reasonableness 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, she is justified in leaving . . . .” (Cedarglade Limited v Tina Hilban UDD 1843). Thus, it may be reasonable for an employee to terminate the contract because of the conduct of the employer even if the employer had adhered to the contractual terms.

A general term is implied into every contract of employment that the employer will not impair the ‘trust and confidence’ of the employee. In Malik v Bank of Credit and Commerce International [1997] 3 All ER 1 (cited in Berber v Dunnes Stores [2009] IESC 10), Lord Stein stated:

“The implied obligation extends to any conduct by the employer likely to destroy or seriously damage the relationship of trust or confidence between employer and employee”.

In Malik the threshold was held to be high: it must “destroy or seriously damage” the trust between the parties. However, it is not essential that the employer be aware of the effect of the conduct. Nor that they intended such an effect. 

Similarly in Joyce v Brothers of Charity Services [2009] ELR 328, the Employment Appeals Tribunal (EAT) held that the conduct “. . . cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee”.

In Berber v Dunnes Stores Ltd [2009] IESC 10, it was held by the Supreme Court that in determining if there has been a breach in the implied contractual term of mutual trust and confidence, the conduct of both the employer and employee must be examined as a whole, and the cumulative effect of the conduct must be looked at. The conduct of the employer must be unreasonable and without proper cause and its effect on the employee must be viewed objectively, reasonably, and sensibly to determine if it is such that the employee can no longer be expected to tolerate the behaviour.

“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.”

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v Lootah & Others, UD1219/2013).

It is well settled law that an employee must make reasonable efforts to bring the grievance to the attention of the employer before resigning. In O’Gorman v Glen Tyre Company Ltd (UD2314/2010), the EAT noted:

“[I]t is crucial in a constructive dismissal case that the claimant informs the employer fully of the complaints being made against him and the employer be given an opportunity to resolve the issues”.

At a minimum the employee will be expected to utilise the company grievance procedure. In Conway v Ulster Bank Ltd UD 474/1981, the EAT noted that “it is not for the Tribunal to say whether this procedure would have produced a decision more favourable . . . but it is possible”.

In 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 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”.

It is also well settled law that an employee may be justified in resigning without utilising the grievance procedure in some circumstances. In Mr O v An Employer (no. 2) [2005] 16 ELR 132, the court accepted:

“. . . 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. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal”.  

There was no dispute that the Complainant commenced his employment with the Respondent on 18 July 2022. He resigned his employment on 23 June 2023 giving once months’ notice. The Complainant asserted that the changes to his workload implemented by the Respondent, particularly in the context of his shoulder injury, would lead to financial losses for him. The Complainant alleged that the Respondent had no right to change his workload. The Complainant further alleged that he was “persecuted” by the Respondent. He asserted that he was, therefore, entitled to resign and consider himself constructively dismissed. The Respondent denies the Complainant’s allegations.

In essence, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign. The notion places a very high burden of proof on an employee to demonstrate that he acted reasonably and had exhausted all internal procedures in an attempt to resolve his grievance with his employer.

Having carefully considered the submissions and evidence proffered in this case I find as follows.

The Complainant commenced his sick leave on 24 May 2023 due to a ‘medical condition’. He returned to work on 6 June 2023. It appears that at this juncture the Complainant did not report any concerns regarding his shoulder injury.  The Complainant submitted a medical certificate recommending that he is to avoid heavy lifting “for the next month”, i.e. from 16 June to 15 July 2023.

The Respondent arranged a meeting with the Complainant on 19 June 2023 to inquire further as to the nature of his injury and the type of accommodation that could be provided to the Complainant. The Complainant was informed that the local management would discuss the matter with the HR Department and occupational health experts to assess the light duties the Complainant would be able to perform. The Complainant was further informed that a relief driver would be assigned to work with the Complainant to assist him. I note that the Complainant was requested to attend an occupational health specialist but he declined to do so.

The Complainant handed in his notice on 23 June 2023. I note that the Complainant was asked to reconsider his decision to resign but he did not do so.

In considering this issue, I am satisfied that the Respondent had an established Grievance Procedure in place. The Complainant’s contract of employment at point 14 stipulates that:

“Grievance Procedure

Any complaint concerning your employment should be raised by you with your immediate manager and if you are dissatisfied with the decision you should follows the Grievance Procedure, a copy of which shall be given to you.”

The Complainant confirmed that he received the Grievance, Disciplinary and Dismissal Procedure that was attached to his contract of employment and was exhibited at the hearing. The Complainant was aware of the existence of internal procedures and of the requirement to invoke same.

Having regard to the totality of the evidence before me, I am not satisfied that there were factors present in the circumstances of this case which excuse the Complainant’s failure to invoke the internal grievance procedures before resigning.

Having examined the facts as presented, I find that the Complainant did not utilise the internal procedures available to him to process his grievance. Therefore, I must conclude that the standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met where the Complainant failed to exhaust the procedures available to him before taking the step to resign, thereby not providing the Respondent with an opportunity to address his grievance in a proper manner.

I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that he had no option but to resign his position or it was such as to show that it no longer intended to be bound by one or more of the essential terms of his contract. I am, therefore, satisfied that the Complainant was not constructively dismissed, and he resigned from his employment of his own volition.

For completeness, I note that the Complainant’s colleague was not available to assist him from 27 June 2023 for a period. I have some concerns regarding the Respondent’s decision to place the Complainant on unpaid sick leave until further supports could be arranged for the Complainant. These events, however, took place after the Complainant made his decision to resign known to the Respondent and, therefore, could not have any bearing on his decision to resign.

I decide that this complaint is not well founded.

Constructive dismissal – grievance not utilised-