Complainant

Respondent

Parties

Adam  Haskins

Meadowfield Facility Services Limited (Amended on consent)

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060864-001

06/01/2024

The Complainant stated that he was left with no choice but to terminate his employment on 29 December 2023 as a result of the Respondent’s failure to address concerns in the workplace that he had raised in a grievance.

The Complainant stated that he had no issues with the Respondent until such time as he was given a written warning in September 2023 with only one hour’s notice of the disciplinary hearing. He stated that he received no advance warning of the hearing, was not given the opportunity to be accompanied and also was not afforded the right of appeal.

He further stated that he had never been given a verbal warning and alleged that the written warning therefore came as a surprise. Further to having received the written warning, he was placed on a Performance Improvement Plan (PIP) by the General Manager. He subsequently arranged a meeting with the Managing Director wherein he expressed how unfair the written warning was. At a further meeting one week later, the Managing Director offered him a severance package subject to him getting a solicitor to witness the agreement. Despite the Complainant having signed it twice, the Managing Director refused to finalise the matter because the agreement had not been witnessed by the Complainant’s solicitor.  The Complainant was subsequently instructed not to sign the agreement on foot of legal advice from his solicitor.

Having then withdrawn the severance offer, the Respondent instigated a fresh disciplinary process against the Complainant that was unrelated to the previous matter. Specifically, the Complainant was accused of working in several different jobs while he was on suspension from the Respondent.

The Complainant stated that despite him having raised the grievance verbally in September 2023, the Respondent’s Managing Director did not meet him until 22 December 2023. He further asserted in evidence at the hearing that the decision of the Managing Director to carry out the grievance investigation himself was illegal.

He stated that given the delays in investigating the matter and the fact that he had no income from the Respondent since September 2023, he had no choice but to terminate his employment on 29 December 2023. He also asserted that the Managing Director had been trying to force him to leave his employment since September 2023 following the decision by the Managing Director to hire his sister as well as her boyfriend. He highlighted that until that point his work had been excellent and he had helped the Respondent’s business to grow significantly.

The Complainant was employed as a Lead Cleaning Technician by the Respondent commencing on or around 5 August 2022. The Complainant was not performing in his role and numerous meetings took place in relation to his work. This ultimately resulted in him receiving a written warning about his underperformance, further to which an improvement plan was initiated on 20 September 2023. Despite the plan, the Complainant’s performance did not improve.

The Complainant was subsequently asked to attend a further meeting to discuss his non-performance and was instructed that he could bring a colleague. The Complainant attended the meeting with his sister on 17 October 2023. His performance was discussed in detail and what if anything could be done to improve. His sister suggested that the best thing for everyone would be to come to an agreement where the Respondent would pay the Complainant a sum of money to exit the business. The meeting was adjourned to allow the Respondent time to think about the suggestion and the Complainant took annual leave. The Complainant and the Respondent subsequently agreed terms of a severance agreement and the Respondent emailed the agreement to the Complainant in October 2023.

It was a condition of the Agreement that the Complainant get independent legal advice. The Complainant returned a signed agreement by email, but it was not witnessed by a qualified legal professional and no advice had been taken by him. The Respondent insisted on the Complainant getting independent advice, but the Complainant did not want to. As the Complainant then informed the Respondent that he would not be signing the agreement, the offer was withdrawn on the 14 November 2023 and the Complainant was asked to return to work.

The Complainant subsequently invoked the Respondent’s grievance procedure on 21 November 2023 and sent a message to say that he could not return to work for health reasons. The Respondent confirmed to the Complainant on receipt of the grievance that he would investigate it but needed confirmation from the Complainant’s doctor that he was in a position to engage with the investigation. The Respondent also wrote to the Complainant around this time as the Managing Director had become aware that the Complainant was offering services and/or working for other parties while he was in their employment. Specifically, it was alleged that the Complainant started promoting another company on his Instagram page and WhatsApp stories and was hiring staff for them on the 20 October 2023, the day after he agreed the severance agreement. The Respondent’s Managing Director called the number advertised and was told that the Complainant did not drive the bus but helped with staffing and management. The Respondent also promoted himself as a digital marketer and business consultant on his Instagram page. It was asserted that any such activity was in breach of his contract with the Respondent. In addition, a witness for the Respondent gave evidence at the hearing that the Complainant conducted an interview on behalf of another company with a prospective driver wherein he held himself out as an employee.

On 22 November 2023, the Complainant forwarded the Respondent a sick note stating that he was not available to come back to work until January 2024. The Respondent’s Solicitor was informed on 12 December 2023 however by the Complainant’s solicitor that he was available to participate in both the grievance as well as the disciplinary processes.

On 18 December 2023, the Respondent invited the Complainant to two meetings, one relating to his grievance and the other in relation to his alleged misconduct in respect of his out of work activities. The meeting in relation to his alleged misconduct was arranged for 8am on 22 December 2023 and the grievance investigation at 9 am on the same day. The Complainant missed the 8am meeting and attended the second meeting with a friend. At the end of the meeting, the Respondent said that he would revert to the Complainant in respect of the grievance investigation after the Christmas break. The Complainant then asked about the Severance Agreement and said that if he didn’t get what was offered in the Agreement he would go to the WRC.

The Complainant subsequently emailed the Respondent on 26 December 2023 requesting a meeting. He stated that if the Respondent did not agree to attend, he would initiate a complaint to the WRC on 29 December 2023. As the email was sent over the Christmas break, and to the Respondent’s general email address instead of directly to the Managing Director, it was not seen by the Respondent and the Complainant resigned on 29 December 23 with immediate effect.

The Law

Section 1 of the Act defines what is commonly termed ‘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”

Findings

As dismissal as a fact is in dispute, it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal within the meaning of the Act.

The case law envisages two circumstances in which a resignation may be considered a constructive dismissal which is unfair within the meaning of the Act. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee would be entitled to regard himself or herself as having been dismissed and that the dismissal was unfair. In the UK Court of Appeal Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332held that

“an employer must 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”.

A line of authorities has since established this decision as defining the “contract test”.

Secondly, an additional ‘reasonableness’ test may be relied upon as either an alternative to the contract test or in combination with that test. This 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, he is justified in leaving. 

In this case, the Complainant stated that he was left with no alternative but to issue notice of his resignation from his position on 29 December 2023 due to the Respondent’s failure to address the grievances he had raised in the workplace . Specifically, he stated that he raised a verbal grievance in September/October 2023 in relation to the way he had been treated by the Respondent. He followed this up on 21 November 2023 with a written grievance, which related to the way he had been treated by both the Managing Director and the General Manager. He further alleged at the hearing that it was unfair the Managing Director had chosen to conduct the investigation himself.

It is not for me as the Adjudication Officer to replicate the grievance procedure of the Respondent by acting as an investigator of the complaint. I must however examine the conduct of the parties in relation to the grievance investigation itself. In the first instance, I note that although the Complainant only formally invoked the Respondent’s grievance procedure in writing on 21 November 2023, he resigned from his employment on 29 December 2023, less than six weeks later. I further noted that the Respondent’s Managing Director wrote to the Complainant on 23 November 2023 and stated that they would address his grievance but were waiting for confirmation that he was fit to engage with the process. It was only on 12 December 2023 that this was received from his solicitor however and the Respondent in my view acted reasonably quickly by arranging the grievance meeting for 22 December 2023. Further to the meeting, the Complainant sent an email to the Respondent’s general email address instead of directly to the Managing Director on 26 December 2023 demanding an outcome to the grievance investigation by 29 December 2023, and stated that if same was not received by his stipulated deadline, he would resign from his employment and refer the matter to the WRC, which he duly did.

In considering whether the decision to resign without having fully utilised the Respondent’s grievance procedure was reasonable, I note that it is well established in case law that an employee is required to exhaust the Respondent’s grievance procedures to resolve their grievance prior to resigning and initiating a claim for unfair dismissal. 

Specifically, in the case of Murray v Rockavill Shellfish Ltd it was affirmed that:

“An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

Similarly in UD142/1987 Beatty v Bayside Supermarkets, it was noted that:

“The Tribunal considers that it is reasonable to expect that 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 Ltd 474/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was not constructively dismissed”.

As I do not find that the delay in the scheduling of the grievance investigation meeting by the Respondent was unreasonable given that they were waiting to establish if the Complainant was able to engage in the process, I find that his decision to resign without exhausting the Respondent’s grievance process was precipitous. Specifically, I find that the Complainant’s demand, sent to the general office email address and not directly to the Managing Director, that the Respondent issue the outcome of the grievance investigation in the three-day period between 26 December 2023 and 29 December 2023 was wholly unreasonable. This is because the timeframe included the Christmas period and the investigation meeting with the Complainant only took place on 22 December 2023.

While I also noted that the Complainant highlighted in evidence at the hearing that it was unfair that the Managing Director conducted the grievance investigation himself, he never formally raised this concern at any stage either during his employment or indeed in his resignation letter.

I also accept the evidence of the Respondent’s Managing Director that the alleged failure to address the grievance as expeditiously as the Complainant would have liked was not the sole reason behind his decision to resign. Specifically, I find, on the balance of probabilities, that the Respondent’s refusal to pay the amount set out in the proposed severance agreement, due to the Complainant’s decision not to have this witnessed by his solicitor, was a significant factor, and probably the overriding one, in the decision to resign from his employment. I make this finding because of the compelling direct evidence of the Managing Director, who gave clear, credible and consistent evidence of the meeting with the Complainant on 22 December 2023 as well as the assertion in the Complainant’s letter of resignation that “As you have failed and/or refused to engage in meaningful discussions, I will have to seek alternative employment immediately”    

Considering all of the foregoing points, I find that the Complainant acted unreasonably in deciding to resign from his employment and that he was therefore not constructively dismissed.

I find that the Complainant was not unfairly dismissed for the reasons set out above.