Complainant

Respondent

Parties

Martin  Roche

Tipperary County Council

Representatives

  N/A

Keith Irvine, Local Government Management Agency (LGMA)

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-00063484-001

14/05/2024

The Complainant was employed by the Respondent as a School Warden from 6 January 2020 until 25 April 2024. From September 2022, the Complainant was assigned additional duties relating to Newport Town Park (the “Park”). He worked 20 hours per week and most recently was paid €17.30 gross per hour.

The Complainant outlined a number of grievances, including: allegations of bullying and harassment; an allegation that his hours were reduced from 20 hours to 15 hours; an allegation that he was told that he was not entitled to annual leave; and an allegation that he was not provided with proper Personal Protective Equipment (“PPE”). The Complainant resigned in writing on 25 April 2024 and alleges that he was constructively dismissed. He is seeking financial compensation. The Respondent denies the allegations and submits that the Complainant failed to utilise the relevant internal procedures.

The Complainant provided written and oral submissions.

The Complainant outlined that he did not take leaving his job lightly. He said that he is a respected member of the local community and that he worked as a School Warden. In this role, he ensured the safety of children crossing the street. He also referred matters concerning anti-social behaviour to the Gardaí. From September 2022, he took on additional duties relating to the Park, which include: opening and closing the Park; picking up litter; and maintaining the public toilets. The Complainant outlined that he had a number of grievances which occurred over a period of approximately two years.

The Complainant stated that in April / May 2021, Mr. Liam Shinners, his Supervisor, began making “smart remarks” to him. On one occasion he referred to his skin tone. He stated that his Supervisor would also refer to his weight and make pointed comments when he attended the local restaurant.

The Complainant also took issue with the jacket and boots that he was provided with. He said that they were water-logged. He said that he had to wait one year for a new jacket and two years for new boots. He said that he did not get a door fob for approximately one year. The Complainant stated that he was not provided with a litter picker or PPE for weeks. He said that he had to chase up on them.

The Complainant stated that in October 2022, he intervened in a physical assault in the Park, to protect a girl. The Complainant said that he reported the matter to the Gardaí. He said that he also reported the matter to his Supervisor, who said that it was not a matter for him or the Respondent. The Complainant stated that he was shocked.

The Complainant stated that he was approached by a girl in April 2023, who said that another member of the public, had referred to the Complainant in a derogatory manner. The Complainant said that he reported the matter to the Gardaí. He said that he also reported it to his Supervisor, who said that it was not a matter for him or the Respondent. The Complainant stated that he was shocked.

The Complainant stated that he did not receive any training as regards how to clean the public toilets. He stated that he was told to give the area a “wipe down” and to wash the floors about once per week. He said that this is what he did. He stated that the Tidy Towns Committee did not have access to the public toilets at the weekend. He also stated that the toilets were not maintained at the weekends. As a result, he said that the toilets were in bad condition when he came to attend to them on Tuesdays. He stated that if there was any vandalism, he reported it to his Supervisor. He said that if there was anti-social behaviour by youths, he would tell them to leave.

The Complainant stated that he called the Respondent and was put through to HR in Clonmel. He stated that he was told by an unknown person, to make it “short and sweet” when he was outlining his grievances. He stated that he subsequently received a text from his Supervisor stating that he was being called to a meeting in Nenagh and what was it all about. The Complainant stated that he did not respond. He stated that he heard nothing further from HR.

The Complainant outlined that in November 2023, he received a phone call from Mr. Paul Keane, the Executive Engineer and his Supervisor’s manager, who asked to meet him at the public toilets. The Complainant took issue with the fact that while Mr. Keane had stated his name, and even though the Complainant knew who he was, Mr. Keane did not state on the phone that he was an Executive Engineer. The Complainant met him the following day when he was “off duty”. The Complainant outlined that he knew who Mr. Keane was, however, he took issue with the fact that Mr. Keane only shook his hand when they met. He said that Mr. Keane inspected the public toilets and that Mr. Keane, inter alia, pointed to a blocked drain in the ladies’ toilets. The Complainant took issue with Mr. Keane entering the ladies’ toilets. The Complainant said that Mr. Keane told him that the toilets were not being cleaned to his standards. The Complainant said that Mr. Keane told him that he had no respect for the village and no pride in the village. The Complainant said that he was insulted by this. He stated that he then called Mr. Keane “a thug”. He apologised at the Hearing for this. He also said that Mr. Keane subsequently shouted at him that he “would get him”.

The Complainant stated that he then spoke with his Supervisor, two days later. He told him that the meeting with Mr. Keane had not gone well. The Complainant said that he told his Supervisor that he had no problem with cleaning the public toilets to the standard required and suggested that they “make out a sheet regarding their cleaning”. At that point, the Complainant stated that he understood that everything was ok.

The Complainant stated that he subsequently received a call from his Supervisor, who said that, following a meeting in Nenagh, it was agreed that the Complainant’s hours would be reduced to 15 hours and that he was no longer required to clean the public toilets. He said that he was also told that he could continue to give the toilets a “quick clean”.

The Complainant stated that two to three weeks later, he hurt his back and went on sick leave. He submitted medical certificates and he received illness benefit. In March 2024, he sent a text message to his Supervisor stating “Im back at the doctors on 6th and will send paper cert to Nenagh that day”. He took issue with his Supervisor’s response which stated “Are you back to work then or what”. The Complainant stated that he did not return to work and that he resigned in April 2024. He stated that he believed that he had to leave his job. He said that his back was not improving. He was also concerned that the “abuse” would continue.

The Complainant stated that he took one week’s annual leave in September 2022. He also stated that he was subsequently told by his supervisor that he was not entitled to annual leave as he worked part-time. He said that he did not complain about this to HR.

The Complainant submitted that he is still on disability benefit and under his doctor’s care. He said that he cannot do any physical work and that he has “not been cleared by his doctor” for work. He said that he has not applied for any jobs. He said that he is also in receipt of a living alone allowance.

The Complainant confirmed that he had reviewed the Respondent’s grievance procedure and the Respondent’s Dignity at Work Policy “several times” and that he was familiar with them.

Cross – Examination:

Under cross-examination, the Complainant stated that issues began to arise in January 2021. He stated that the issues continued until he went on sick leave in December 2023.

The Complainant stated that he called HR in Clonmel and that he did not know who he spoke to. He told them about his supervisor’s comments relating to his weight and about his skin tone. He said that he heard nothing further from HR. He said that he did not follow up on it. He said that his Supervisor then sent him a text message to say that he was going to a meeting in Nenagh. The Complainant said that he had no issues with his Supervisor after that date. The Complainant confirmed that he did not put his complaint in writing to HR.

The Complainant stated that he resigned after a “build up” of issues as regards how his Supervisor and Mr. Keane spoke to him. He stated that he did not have more specific dates.

The Complainant stated that he went on sick leave in December 2023. He resigned in April 2024. He confirmed that he did not return to work as he pre-empted that he would have more issues if he returned to work.

The Complainant confirmed that his GP has never said that he couldn’t work. The Complainant said that he did not ask his GP about what he could do. He also stated that he cannot sit for long periods of time. The Complainant did not accept that he had not sought to mitigate his losses. He also accepted that he had not applied for any jobs.

The Complainant denied that Mr. Keane told him that he was meeting him at the public toilets on 27 November 2023 to address “performance issues”. The Complainant stated that Mr. Keane said that the toilets were not to his standards. He said that the meeting became heated. He said that he called Mr. Keane “a thug” and that he walked away. The Complainant accepted that in the circumstances, he left the meeting.

The Complainant confirmed that he was aware of the Employee Assistance Programme and stated that he did not use it.

The Complainant confirmed that his absence from work was unrelated to work.

The Complainant confirmed that he did not seek training in relation to cleaning the public toilets. He stated that he understood that a general clean was required.

The Complainant confirmed that he received a new jacket and new boots approximately one and two years respectively after he had requested them. He stated that he had not followed up on his requests for the same, to the Respondent.

The Complainant stated that when he told his Supervisor about the two incidents that he had reported to the Gardaí, he had expected him to write a report for the Respondent.  He said that he did not know if his Supervisor had done this.

The Complainant confirmed that his hours were never reduced and that he was paid for 20 hours per week, even while on sick leave.

The Complainant confirmed that his annual leave entitlements are set out in his contract of employment. The Complainant stated that his Supervisor told him in September 2022 that was not entitled to annual leave and so he made no annual leave requests. He also confirmed that when he resigned, he received full pay for his accrued annual leave. The Complainant confirmed that he was paid for 145 hours of accrued annual leave.

The Respondent provided written and oral submissions.

The Respondent submitted that the Complainant had been on sick leave for approximately five months prior to resigning and that he did not have any issues during this time. Moreover, the Respondent submitted that the Complainant failed to utilise the grievance procedure. In the circumstances, the Respondent submitted that the Complainant failed to meet the burden of proof as regards constructive dismissal and that the complaint should be dismissed. The Respondent also submitted that the Complainant did not seek any further employment since resigning and so he has failed to mitigate any losses. Finally, the Respondent submitted that the Complainant’s hours were never reduced and that he was paid for his accrued annual leave, following his resignation.

Witness Evidence - Mr. Paul Keane:

Mr. Keane outlined that he is an Executive Engineer for the Respondent. He is based in Nenagh Municipal District and has responsibility for Newport. He has held his role for approximately six and a half years. 

He stated that the Complainant’s Supervisor, Mr Shinners, reports to him.

Mr. Keane outlined that the Complainant had called the Nenagh office in 2023 and had made a number of accusations concerning his Supervisor to a member of staff who held a general administrative role and who operated at the district level. He stated that this was not a call to HR. He stated that the Complainant’s Supervisor had also expressed some concerns regarding the Complainant’s performance to him. Mr. Keane outlined that he therefore arranged to meet the Complainant on 27 November 2023 at the public toilets in the Park. He said that the meeting was arranged by way of telephone call and that during the call, he introduced himself and said that he wanted to meet with the Complainant about the toilets and about his recent complaint to the Nenagh office.

Mr. Keane outlined that on 27 November 2023, he met with the Complainant and inspected the public toilets. He stated that they were not cleaned to the standard he hoped and that he said this to the Complainant. He stated that the Complainant became confrontational and that they stepped outside. He said that the Complainant appeared to take exception to him inspecting the toilets. He stated that they discussed the toilets but did not discuss the Complainant’s complaint to the Nenagh office. He stated that the Complainant terminated the meeting as he walked away. He stated that the meeting took approximately five minutes in total. He stated that, subsequently, he emailed his own Supervisor, Mr. Barry Murphy, to outline what had happened. He said that he understands that the Complainant went on sick leave shortly afterwards.

Cross-Examination:

Mr. Keane stated that he introduced himself on the phone when he called the Complainant to arrange the meeting which took place on 27 November 2023.

Mr. Keane denied that the meeting held on 27 November 2023 was a disciplinary meeting. He said the meeting was to inspect the toilets; discuss the Complainant’s complaint to the Nenagh office; and inform the Complainant of his rights if he wanted to make a complaint. He stated that he would have to follow the Respondent’s policy.

Mr. Keane said that during the meeting he stated that he was not satisfied with the Complainant’s performance and said that he needed to do better as regards the toilet cleaning. He said that the Complainant became agitated and that they had to step outside.

Mr. Keane stated that a level of common sense is applied as regards the cleaning of the toilets. He stated that the floors should be cleaned; the toilet roll and soap should be replenished; and that the toilets and handbasins should be cleaned. He said that this is not documented and that there is no training.

Mr. Keane was asked whether it was standard procedure to meet an employee who was “off duty” and at the public toilets. Mr. Keane stated that it was a pre-arranged meeting and that the time and venue had been agreed in advance with the Complainant.

Mr. Keane stated that he could not discuss the Complainant’s complaint regarding his Supervisor as the Complainant walked away.

Mr. Keane said that he did not recall saying anything like “I will get you” to the Complainant.

Mr. Keane denied that the Complainant’s hours were reduced.

Witness Evidence - Mr. Paul Murray:

Mr. Murray outlined that he is the Head of HR for the Respondent. He stated that he has held this role for approximately eight years.

He stated that he did not receive: any complaint from the Complainant about his Supervisor, or any complaint from the Complainant’s Supervisor about the Complainant. 

Mr. Murray stated that annual leave is dealt with at the local level and that HR deals with it when the hours are submitted. He stated that the Complainant was paid for all accrued annual leave on cessation of his employment.

Cross-Examination:

Mr. Murray stated that the Respondent does not record phone calls. 

Mr. Murray said that he knew nothing about a meeting in Nenagh regarding the cleaning of the public toilets and reducing the Complainant’s hours.

The Law:

The definition of dismissal at s.1 of the Unfair Dismissals Act 1977 – 2015, includes the concept of constructive dismissal:

“dismissal, in relation to an employee means –

[…]

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 without giving prior notice of the termination to the employer”.

The case of Western Excavations Ltd v. Colin John Sharp [1978] 1 All E.R. 713, which has been endorsed by the Labour Court, sets out the applicable legal tests for constructive dismissal. These tests are the "Contract Test” and the "Reasonableness Test". Both tests relate to the behaviour of the employer.

The “Contract Test” is summarised 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.”

The “Reasonableness Test” is summarised as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v. Ulster Bank Ltd., UD 474/1981, where the EAT stated that the appellant:

“did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Findings and Conclusion:

In his evidence, the Complainant outlined that he was on sick leave, for reasons unrelated to his work, from December 2023 until April 2024, when he resigned. He feared that he would have issues when he returned to work and so he resigned.

The Complainant stated that he made one telephone call to the Respondent regarding his grievances. I note that the Complainant believed that he had called HR, while it was the Respondent’s position that the Complainant had called a member of staff who held a general administrative role, and not HR. Moreover, I note that the Complainant accepted that by walking out of the meeting with Mr. Keane on 27 November 2023, he had left the meeting.

The Complainant confirmed in evidence that he had reviewed the Respondent’s grievance procedure and the Respondent’s Dignity at Work Policy “several times” and that he was familiar with them. The Complainant did not follow up on his telephone call to the Respondent and / or put his grievances in writing. He therefore did not substantially utilise the Respondent’s grievance procedure. As set out above, pursuant to Conway v. Ulster Bank Ltd., UD 474/1981, the substantial utilisation of internal procedures is an essential element of succeeding in a claim of constructive dismissal. In this matter, the Complainant did not substantially utilise the Respondent’s internal procedures.  

In the circumstances, I find that the Complainant was not unfairly dismissed.

For the reasons set out above, I find that the Complainant was not unfairly dismissed and that the complaint is not well founded.

Unfair Dismissals Acts 1977 – 2015, Constructive Dismissal.