Complainant

Respondent

Parties

Adam  Cruise

N.C Electrical Engineering Ltd

Representatives

Thomas Faulkner, Connect Trade Union

John Barry, Management Support Services (Ireland) Ltd

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-00064168-002

19/06/2024

The Complainant was employed as an Apprentice Electrician by the Respondent since 11 April 2022. He stated that he was forced to resign from his position during a meeting on 30 March 2024 and alleged that this forced resignation constituted a constructive dismissal.

On 21 March 2024, the Complainant was involved in an incident in the workplace wherein he was assaulted. He attended Beaumont hospital on the day of the incident where he had tests carried out. He also visited his GP six days later and received treatment for headaches which had been present since the day of the assault.

The Complainant contacted the Respondent the day after the incident on Friday 22 March 2024 seeking a meeting. This was subsequently arranged for 30 March 2024. It was attended by the Complainant as well as Mr Darren Bertram and Mr Ian Bertram on behalf of the Respondent. The Complainant outlined his details of the events of 21 March 2024. Further to this, he was asked by Mr Ian Bertram about his notice of resignation which he had given on 21 March 2024 over the telephone. In reply, the Complainant stated that he was withdrawing his resignation as it had been done in the heat of the moment.

Mr Ian Bertram stated that if the Complainant wanted to proceed with the investigation into the allegations the had made the only realistic option for him was that he resign. He then presented the Complainant with a pre-typed out resignation letter for him to sign. The Complainant stated that he was made to sign the letter under duress and was not afforded any rights of representation at the meeting.

The Respondent stated that four of their teams experienced several difficulties with both the Complainant’s work and attitude during his employment. The Respondent did not instigate any disciplinary action against him however because he was the son of a client with whom they Respondent did a lot of business.  It was also alleged that this client had secured the role for his son, the Complainant, with the Respondent.

The Complainant started working with a fifth team in early 2024 and the other members of the team soon had issues which they spoke to him about. On 21 March 2024, Mr Darren Bertram received a phone call from the Complainant alleging that he had been attacked and assaulted by members of the team he was working with, namely the fifth team, and that he was resigning.

Mr Ian Bertram subsequently called the Complainant and told him that he would have to investigate the situation. The Complainant informed him that he was going to Beaumont Hospital. The Complainant failed to attend work the following day and a medical certificate was subsequently received stating that he was suffering from concussion.

Mr Ian Bertram arranged to meet with the Complainant on 30 March 2024 as part of his investigation into the allegation the Complainant made that he had been assaulted and attacked on 21 March 2024. The Complainant’s father attended at the Respondent’s premises on the day of the meeting but chose not to accompany his son, despite having been given the opportunity to do so by the Respondent.

At the meeting, the Complainant outlined in detail the assault that he stated he had been subjected to on 21 March 2024 in the workplace. When he heard the Complainant’s version of events, Mr Bertram informed him that he would have to investigate the matter more thoroughly given the seriousness of the allegations. Given that the Complainant had also told Mr Darren Bertram that he was resigning on 21 March 2024, Mr Ian Bertram then produced a document that he gave the Complainant to allow him formally confirm his resignation in writing. The Complainant signed the document without hesitation, shook Mr Bertram’s hand and the meeting ended very amicably.

Mr Ian Bertram subsequently wrote to the Complainant on 9 April 2024 by way of a follow up to the meeting of 30 March 2021, as part of this ongoing investigation into the allegations made by the Complainant on 21 March 2024. As he did not reply, Mr Bertram wrote to him again on 17 April 2024. The Complainant then replied disputing his version of what had happened at the meeting. Mr Ian Bertram replied asking the Complainant to clarify exactly what element of the meeting he was disputing and informed him that the investigation only commenced after the meeting of 30 March 2024. No further communication was received from the Complainant however.

Mr Ian Bertram subsequently continued the investigation and spoke to the employees who were allegedly involved in the assault on the day. One of these employees, S, gave evidence at the hearing and denied that there was any attack or assault on the Complainant on 21 March, as was alleged. He stated that his colleague had spoken to the Complainant about his poor workmanship on 21 March 2024, further to which the Complainant threw a tantrum and started to bang his hammer against the wall, prior to then walking off the site. When the Complainant returned some time later to gather up his tools, S asked him about his reaction earlier and the Complainant smirked at him before walking off site for the final time.

THE LAW

The Act at Section 1(b) defines constructive dismissal in the following manner

“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,”

ANALYSIS

It is for the Complainant to establish that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act at Section 1 above. That section of the Act, and the case law since its enactment, has established two circumstances where an employee is entitled, or it would be reasonable for him or her, to terminate the employment relationship.

Contract Test

Firstly, in circumstances where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee is entitled to regard himself or herself as having been dismissed. This is often referred to as the “contract test”. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332as 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 discharged from any further performance.

In plain English, this means that where an employer makes a fundamental breach of an essential term of the contract of employment, the employee may consider him or herself to be constructively dismissed.

Reasonableness Test

Secondly, an unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate his or her employment.  This test of reasonableness, when applied to the within matter, asks whether the employer conducted its affairs in relation to the employee so unreasonably that the Complainant felt that he had no choice but to resign. Specifically, the Complainant has asserted that he felt pressurised into leaving his employment against his will to avoid the matter being reported to the Gardai by the Respondent.

I note that In Fell v H. Williams & Co. Ltd.  (UD 518/82)Fell was employed by the respondent as a checkout operator. A dispute arose over Fell’s practice of keeping single pound notes in a drawer underneath the cash till. She was warned not to use that drawer in the future. At a later date Fell found that £40, which she had put into the un-authorised drawer, was missing. She told the store manager that the money had been taken from the unlocked drawer during her lunch break. Fell was interviewed about the matter by the personnel manager and the area supervisor. There was a dispute as to what happened at that meeting. According to Fell, she had been given two options, either to leave or be dismissed. Her employer stated that they had given her the option of achieving normal cashier standards or resigning. In the event Fell resigned. The Tribunal noted they the whole conduct of the interview, in the absence of anybody to represent Fell, was likely to produce the result it did. By an application of the reasonableness test, the Tribunal ruled that it was appropriate for Fell to resign and accordingly they ruled that she was constructively dismissed.

Similarly in Simpson v The Finglas Adult and Child Centre (2009), (Coveney, Muireann (2010). Constructive Dismissal, Successful Claims and the EAT. 7(4) IELJ 99) the complainant was successful in her action for constructive dismissal. Following a workplace incident, the complainant was informed that if she admitted a breach of company protocol she would not face the sanction of dismissal. On that basis, Ms Simpson made a full admission. The following day, she was informed that her only option was to resign (with some benefits) to avoid being dismissed for misconduct. The Circuit Court upheld the EAT's finding that undue pressure to resign was put on Simpson by her employer and the union and the Court ordered that Simpson be re-engaged by the respondent in her previous position.

More recently, the Labour Court stated in the matter of Patrick Markey vs Boylesports Unlimited Company UD/19/190 that “it was not unreasonable for the Complainant….. to form the view that he had been pressurised into leaving his employment against his will” in their finding that the Complainant was unfairly dismissed.

In this case, I must decide if the Complainant resigned from his employment under duress as he alleged or if he did so willingly and of his own volition as the Respondent stated. In making this decision, I must firstly assess the credibility of the witnesses as there was a conflict in much of the evidence between the parties.

I note firstly the Complainant’s evidence that he was physically assaulted during the morning of 21 March 2024. This was flatly denied by his colleague S who was working beside him that day and stated that the Complainant walked off site not because he had been assaulted but after he had been spoken to about his poor workmanship.

In assessing the credibility of both the Complainant and S in relation to the alleged assault on 21 March 2024, I noted in the first instance that it was not denied in evidence that the Complainant had been spoken to previously about his performance on numerous occasions and that this was the fifth team that he had worked with since he had joined the company less than two years previously because of difficulties that  the other teams had in working with him. In addition, I found the evidence of S to be most compelling in relation to what happened on the morning of 21 March because it was clear, credible and consistent unlike that of the Complainant which was vague and imprecise. I also found the suggestion of S that the Complainant invented a story about the attack as a way of justifying his departure from the company to his father to be credible given the undisputed efforts that the Complainant’s father had made to secure him a role with the Respondent in the first instance.

I also noted that it was not denied in evidence by the Complainant that he informed Mr Darren Bertram on 21 March 2024 that he was resigning after he walked off site. While I noted the Complainant’s assertion that this was done in the heat of the moment, he did not attempt to rescind his resignation at any stage between then and the meeting of 30 March 2024. Given that he failed to do so, I find that it was not unreasonable for the Respondent to have asked him to confirm this in writing at the meeting of 30 March 2024 as it would have facilitated the processing of his payroll, as the Respondent alleged. While I noted that the Complainant stated that he ultimately sought to rescind his resignation at the meeting of 30 March 2024, this was denied in evidence by the Respondent’s witnesses who were present at the meeting and who stated that the Complainant willingly signed the document presented to him.

Once again, I find the evidence provided by the Respondent’s witnesses to be more credible regarding the meeting of 30 March 2024. I do not believe it is plausible that the Complainant was forced against his will, as he alleged, to formally confirm a resignation he had verbally communicated over a week earlier, especially when he had not attempted to rescind it and when it was explained to him once again the many difficulties that the Respondent had with him over the course of his employment. Additionally, even if he did, it is improbable that he would have not requested that his father—who was in the building on March 30th, knew the Directors well, and played a key role in helping him secure the position with the Respondent—join the meeting.

Given that I prefer the evidence of the Respondent’s witnesses for the reasons outlined above in relation to what in relation to the two key incidents on 21 March and 30 March 2024, I find that the Respondent conducted themselves reasonably prior to the decision of the Complainant to terminate his employment. Accordingly, I cannot find that the Complainant was constructively dismissed.

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