ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008404
An Office Administrator
A Removals and Storage Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 09/10/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
On the day of the oral hearing the issue of considering whether a “Protected Disclosure” under the Protected Disclosures Act, 2014 could be considered was raised. The issue of Protected Disclosure had been raised in direct correspondence between the parties on the 27th April 2017 but was not indicated on the formal claim form to the Workplace Relations Commission. It was acknowledged that redress for an Unfair Dismissal could only be considered under one of the two Acts stated. The Hearing proceeded to consider the Dismissal under the Unfair Dismissals Act,1977 but allowing by agreement between the parties that the question of a Protected Disclosure could be referenced as provided for in Section 6 of the Unfair Dismissals Acts, 1977.
1: Summary of Complainant’s Case:
The Complainant was employed as an Office Administrator by the Respondent from 2nd September 2015. She formally tendered her resignation on the 26th April 2017. It was her contentions that she had repeatedly raised serious concerns with the Respondent regarding a Road Traffic matter namely the un authorised driving of Company vehicles. Her concerns regarding this illegal act were effectively ignored. She did not wish to be associated with an Illegal practice and resigned her employment. She regarded the actions of her employer as being completely unreasonable and “cavalier” leaving her with no option but to resign.
2: Summary of Respondent’s Case:
The Respondent Employer refuted all the allegations. The Complainant had initially indicated that she was leaving for “Personal reasons”. It was only when she wrote formally on the 26th April, some three weeks approximately after she had physically left on the 5th April, that the full details of her grievances became apparent.
The actions of the Complainant were completely unwarranted. On the 29th March 2017, she had verbally informed the Respondent principal that she was resigning. It appeared that they had agreed to use the statement “for personal reasons” when informing the remainder of the staff.
It was acknowledged that a meeting of staff had taken place on the 3rd of April where issue of Road Traffic insurance and Unaccompanied L Drivers had been raised but not in such a way as to warrant a Resignation. Correspondence was exhibited to the staff from the Respondent’s insurers regarding the issue.
The Respondent is a small employer characterised by an informal style and the Principal resolutely denied that the Complainant had ever prior to the 5th April ever raised any issue of complaint, sufficient to warrant a resignation, with him.
3: Findings and Conclusions:
Two main issue arise is this case – firstly the Unfair Dismissals “Constructive” issue and secondly the question of a “Protected Disclosure”.
3:1 Constructive Dismissal.
It is well accepted law that two main tests arise in a Constructive Dismissal case – namely Reasonableness or Unreasonableness of the actions of the Parties and Fundamental Breach of Contract such as to leave no option to a reasonable person but to resign.
In terms of Legal Precedents, the issue is discussed in
Redmond, Dismissal Law in Ireland (2002) Tottel Publishing at P404 [19.18]:
“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 employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”
Regarding formal procedures or the absence of same Redmond went on to state in the same Section
“Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his grievance before resigning”
Considering these in sequence
The main issue here was the alleged practice by the Respondent of allowing an L driver drive unaccompanied in a Company vehicle. There is no doubt that this is against the Road Traffic Acts but the Respondent denied that this was a regular practice and the E mail from his insurers indicate that insurance cover was in place. However, having read the email it was, in my view, constructively ambiguous. The Respondent would have been unwise, in my opinion, to rely on it in any major Road traffic situation. None the less the Principal chose to take a favourable interpretation and as the owner of the business that was his decision. The unhappiness of the Complainant was obvious but I did not find that it could justify a resignation from her employment.
She had clearly, at the meeting of the 3rd April, made her views regarding the L driver issue known. While the employer did not have any formal grievance procedures the option was always open to her to formally document in writing her concerns with her employer – put it “on the file” so to speak. A formal meeting with the Insurance Broker could have been sought or indeed the informal advice of the local Gardaí could have been requested.
The actual verbal resignation took place, it appeared, on the 29th March and the L driver issue had not been raised. The Respondent maintained that the Complainant had volunteered to remain until the Whit weekend in June to allow a replacement for her to be found. This was hardly the actions of a person so aggrieved that they had to resign immediately.
As regards being asked to roster the L driver concerned it was the employer who was happy to let him drive and any liability would rest with him as the owner of the Company. The E mail from the Insurance Broker exhibited to the Hearing made this chain of liability very clear
On balance and having hear all the evidence I found it hard to see how the test of unreasonableness in employer behaviours sufficient as to justify a resignation had been satisfied to a sufficient degree to justify the claim.
3:2 (b) Breach of Contract
I could see no fundamental breach of the employment contract in this case. The Complainant received her salary and entitlements without issue.
3:3 Protected Disclosure
Section 6.2. (ba) of the Unfair Dismissals Act ,1977 is relevant and is quoted below.
6 (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
(b) the religious or political opinions of the employee,
(ba) the employee having made a protected disclosure,
It follows that the definition in Section 5 of the Protected Disclosures Act 2014 is relevant and is quoted below.
(2) For the purposes of this Act information is “relevant information” if—
(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
(b) it came to the attention of the worker in connection with the worker’s employment.
(3) The following matters are relevant wrongdoings for the purposes of this Act—
(a) that an offence has been, is being or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged,
(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,
(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or
(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.
In the case in hand the matters raised by the Complainant regarding L Drivers allegedly driving unaccompanied certainly fall with the ambit of Section 3 (a) & (d) above.
The Protected Disclosures Act,2014 Act in Section 11 refers to Dismissal and in Section 12 refers to penalisation following a Protected Disclosure.
Other protection of employees from penalisation for having made protected disclosure
In the case in hand the evidence did not point in any manner to actions of Dismissal or of Penalisation by the Respondent.
Put simply the Complainant resigned by letter of the 26th April 2017 having not been physically present in the office since the 5th April. The Respondent was not afforded any opportunity to address the alleged protected disclosure. The Complainant was not dismissed.
The issue of the subject matter of the Protected Disclosure was the subject of debate at the meeting on the 3rd April – the email from the Insurance broker being central to a difference of opinion between the parties. The issue of Unreasonableness referred to above again becomes relevant. The Respondent employer and the Complainant employee could both easily have “agreed to disagree” and continued with the employment relationship. As stated above the assistance of an outside party could well have been sought.
A Resignation decision in this context, after a three-week absence, was not one that a reasonable observer would support.
Accordingly, and in summary, having reviewed all the evidence and noted the strong opposing positions of the parties I came to the view that
(a) A Protected Disclosure as specified in the Act had been made. The making of a Disclosure does not itself provide the foundation for a Constructive Dismissals claim.
(b) The actions of the Complainant in absenting herself for three weeks, not seeking to pursue the matters of the disclosure by a third-party reference or any other means and then writing a Resignation letter (26th April 2017) completely negate any claims for Redress under either the Unfair Dismissals Act ,1977 or the Proacted Disclosers Act 2014.
(c) Accordingly, I found that the Claim for Constructive Dismissal under the Unfair Dismissals Act 1977 fails and is dismissed.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Workplace Relations Commission Adjudication Officer: Michael McEntee