Complainant

Respondent

Parties

Paul Devlin

Blueline Coaches Limited T/A Nolan Coaches

Representatives

Michael Roche

Conor McCrave Setanta Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066536-001

08/10/2024

The Complainant commenced employment with the Respondent on 25th January 2024 and ceased working with the Respondent on 26th July 2024. His salary was €700 per week and he was scheduled to work for 39 hours per week.

Both the Complainant and the Respondent gave evidence at the hearing and availed of the opportunity to cross examine each other.

The Complainant stated at the outset of the hearing that his claim was one of constructive dismissal. He stated that during the course of his employment he raised a grievance in relation to the working practices of two other staff members. The Complainant and these two colleagues are all drivers and the Complainant described how he was obliged to work more hours than both of his colleagues. He said that others were working less hours for the same rate of pay and he felt victimised and treated less favourably as a result.

When he complained about this practice to the CEO of the company, he was assured that it would be dealt with but it never was and nothing ever happened. When another route was added to the Complainant’s schedule which increased the gap between his working hours and his colleagues, he felt that he had no choice but to leave. He felt that he wasn’t respected or appreciated and that he had been singled out to do extra hours.

The Complainant has not worked since leaving the Respondent.

The Respondent, as a preliminary issue, objected to the Complainant pursuing a claim for constructive dismissal as it was not what was contained in the complaint form. The Respondent presented a full defence to what the Complainant had submitted a complaint of, that he had been treated adversely because he had refused work where he was given less than 24 hours notice of the work under section 17(1) of the Organisation of Working Time Act, 1997.

Through cross examination of the Complainant, the Respondent elicited that this claim was in fact unsubstantiated.  The Complainant accepted that he made the wrong selection on the complaint form, that he had not been treated less favourably solely as a result of refusing work where he had been given less than 24 hours notice and, in fact, the Complainant never had any issue with carrying out work with less than 24 hours notice where needed as that was the nature of the job.

Notwithstanding the objection to a claim for constructive dismissal being heard, the Respondent agreed to proceed and submitted that the Complainant was prevented from pursuing this in any case as he did not have the required 12 months service for such a claim.  The Respondent further stated that the Complainant had always been treated reasonably because all drivers are paid a flat rate of €700 per week. It was stated that the Complainant did not suffer in any way due to the fact that some routes may be shorter than others because everyone got paid the same rate to be available for the same amount of hours.

CA-00066536-001 - Organisation of Working Time Act, 1997

The Complainant’s application to the Workplace Relations Commission states that his complaint is in relation to Hours of Work. Specifically that:

 “My employer treated me adversely for refusing work where I was given less than 24 hours notice of the work”.

This is a claim under section 17 of the Organisation of Working Time Act, 1997 which states that:

17.—(1)If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, that week, and the employee’s employer shall ensure the work takes place within predetermined reference hours and days.

(1A) When the requirements of subsection (1) are not met by the employee’s employer, an employee shall have the right to refuse to work during the reference hours and days predetermined by the employer in accordance with that subsection without adverse consequences.

The Complainant accepts that he selected this category on the form in error; that he never refused work when given less than 24 hours notice and that he was not treated adversely solely as a result of refusing work with less than 24 hours notice.

In the circumstances, I find that the complaint under this heading is not well founded.

Complaint of Constructive Dismissal

The Complainant stated that his complaint was in fact one of constructive dismissal. The Respondent objected to the Complainant giving any evidence in this regard as it was not what was contained in the complaint form.

Preliminary issue

The complaint form is not a statutory document. It is intended to set out the outline of a complaint or complaints, so that, in line with fair procedures, the Respondent knows the issues it faces.

I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370 where at paragraph 6.2 McGovern J held;-

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ 

I am satisfied that, while not selecting the correct category or using the words “constructive dismissal”, the Complainant did in fact set out in narrative form the substance of the complaint. He identified that he felt he “had to leave immediately” as a result of the rosters and what he states was his “unequal treatment”. I am satisfied that the Respondent was on notice of the nature of the complaint in the particular circumstances of this case. Further, the Respondent took some time to confer with its legal representative and agreed to proceed and make submissions on this issue.

Substance of claim

I am taking the Complainant’s statement at hearing that his claim is for “constructive dismissal” to be a claim under the Unfair Dismissals Act, 1977 (“the Act”). The term “constructive” dismissal is not specifically provided for in the Act. However, it is a term commonly understood to refer to that part of the definition in Section 1(b) of the Act which provides that:

“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,…

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] 1 All E.R. 713. 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.” The “reasonableness test” assesses the conduct of the employer and whether it “…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.”

In both types of situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, the question to be decided in such cases is whether, because of the conduct of a Respondent, a Complainant was entitled to terminate their contract of employment.

However, any complaint must be made in accordance with the provisions of the Act and section 2 is particularly relevant to this case.

Section 2 of the Act deals with certain exclusions. In particular, section 2(1) is pertinent to the facts of this case. It states that:

2.(1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him…

The Complainant commenced employment with the Respondent on 25th January 2024 and ceased working with the Respondent on 26th July 2024. That being the case, the Complainant has 6 months continuous service with the Respondent. The Complainant has not identified any other provisions of the Act that would serve as an exception to section 2(1)(a) and so I find that this exclusion applies. I am therefore unable to make a decision under the Unfair Dismissals Act, 1977 because, without one year’s continuous service, this Act cannot apply to the Complainant’s circumstances.

I find that I do not have jurisdiction to determine a complaint under this category as the Complainant does not have the requisite amount of service for the Act to apply.

I find that the complaint is not well founded for the reasons set out above.

Working hours – adverse treatment – constructive dismissal – one year’s continuous service