FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : IASC SLIOGAGH DUN GARBHAIN TEORANTA DUNGARVAN SHELLFISH (REPRESENTED BY NEIL J. BREHENY & CO SOLICITORS) - AND - DANIEL COMANESCU (REPRESENTED BY MC CULLAGH HIGGINS & CO SOLICITORS) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No.ADJ-00002333.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 28th November, 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Iasc Sliogagh Dun Garbhain against Adjudication Officer Decision ADJ-00002333 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a complaint by Mr Daniel Comanescu former employee. The Adjudication officer upheld the complaint and awarded €3,000 euro in compensation. The Respondent was not present at the Adjudication hearing.
In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Mr Comanescu is referred to as the Complainant and Iasc Sliogagh Dun Garbhain is referred to as the Respondent.
Background
The Complainant commenced employment with the respondent in 2003 as a general worker. The Respondent is a company that farms oysters. The work is both weather and tide dependent. The Complainant’s case is that he was constructively dismissed. The manner in which he was treated by the employer left him with no option but to leave the job. He referenced incidents going back several years and in particular an incident involving public holidays for his wife. In and around that time he brought to the employer’s attention the fact that no employee had a contract and he requested that he be supplied with one. Following this the employers attitude towards him changed. A friend advised him of a job going in another company which he successfully applied for.
The Respondent disputes that fact that the Complainant was constructively dismissed or that he was in any way treated inappropriately. The Complainant left his employment on Friday 17thOctober 2015 and commenced his new employment on Monday 20thOctober 2017. The Respondent was asked by the Complainants new employer for a reference and he supplied same. The Respondent was sorry to see the Complainant leave as he was a good worker.
Complainant’s case
The Complainant told the Court in evidence that over the years he had been treated differently to Irish and Polish workers. In particular, himself and his wife had been expected to do the canteen and toilet cleaning more often that other people and he had been asked to work at the Respondent’s family’s homes and on local farms. From January 2015 after his wife had left the company and he had raised the issue of contracts management started ignoring him. It was his evidence that contracts were drawn up and issued to staff in February 2015 and that staff were told to sign and return the contracts or lose their job. Not all employees signed the contract. A second meeting was held in March in relation to the contract. He had a number of concerns in relation to the contract in particular the section dealing with probation and work location. However, he did not raise these issues with anyone. From February 2015, onwards he was not given any instructions in relation to carrying out his work and the Respondent did not engage with him in the same manner as he had previously. He was aware that the company has a grievance procedure but he did not believe he would get a fair hearing under same. He never signed the contract. When the other job came up he felt that he had to take it as he was not being treated properly by the Respondent.
Respondent’s case
The Respondent had two witnesses who gave evidence. X is the head of HR she organised the rotas and drew up the contract. Y is a Director and works in the Company.
X told the Court in evidence that she had drawn up the contracts and had attended the meeting with the workforce in February to explain same. Employees had been asked to return the contract within a week but they were not told they would lose their jobs. Not everybody signed their contract but nobody lost their job. When potential problems with the contract were brought to her attention she addressed them.
Following complaints from some members of staff X removed the paragraph in relation to probation from contracts for existing staff and the Complainant was issued with a fresh contract that did not contain the clause. The location clause was a standard clause but where an individual had a difficulty with it and brought it to her attention she removed it from their contract. The Complainant never identified what specific issues he had with the contract.
In relation to the roster for the canteen and toilets she drew up the roster every two to three months and rotated people from the top to the bottom so it would be fair. There were occasions when people who were rostered to do the duties didn’t do them and on occasion the Complainant and his wife had offered to do it. In order to resolve the issue, they offered to pay the Complainant extra to take on the duties but he declined to do so another worker is now paid for carrying out those duties. X also told the Court in evidence that the Complainant in the past had made complaints which had been resolved in his favour.
Y told the Court in evidence that he knew the Complainant well, as they often worked on the line together. In 2015 the company was in difficulties and was looking at alternative markets. They had to lay off staff so everybody was under pressure. From his point of view the Complainant was a good and experienced worker and therefore did not need direction as he was familiar with the work that had to be done and when it had to be done. He does not believe he treated the Complainant any differently to anyone else. In relation to working in other locations the work was affected by the weather and the tide so at times there was no work available. He would try and source work on local farms or with family members and offer it to the workers. It was up to the worker if they wanted to take this other work. In relation to the meeting in February re the contracts he did not say that if the contract was not returned workers would lose their jobs. He recalled saying that the company could be in trouble if they didn’t have contracts. On Friday 17thOctober 2015 he got a call asking for a reference for the Complainant and he gave same that was the first he knew that the complainant was leaving the company.
The applicable law
Section 1 of the Act 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,”
Section 6(1) of the Act states“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”.
Issues for the Court
Section 1of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”
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”
Secondly, there is an additional reasonableness test which 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, if so he is justified in leaving. It is this latter reasonableness test that is relied upon by the Complainant.
Discussion
The question that arises for decision in this case is whether, it was reasonable for the Complainant to terminate his employment because of the Respondent’s conduct. The Complainant did not submit a letter of resignation nor did he in anyway convey to the Respondent the fact that he considered himself constructively dismissed. The Complainant’s evidence is that he considered himself constructively dismissed on the 17thOctober 2015 yet he gave his employer to be, the Respondents details to contact as a referee when he was interviewed for the new job on the previous day 16thOctober 2017. The only unreasonable conduct that the Complainant complained of in 2015 was the issuing of the contract and his unhappiness with same and his feeling that people were ignoring him. However, he also confirmed that he did not raise his specific concerns in relation to either issue with anybody in the company.
Findings of the Court.
The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained atsection 1of the Act. In reaching its conclusion on that question the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submission made by the parties
The Court notes the Complainant’s position that he felt the contract was an attempt to put him back on probation. The Court also notes that the Complainant confirmed in evidence that he was aware of the company’s grievance procedure but did not use it.
In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a Complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (seeConway v Ulster Bank LimitedUDA474/1981).
InBeatty v Bayside SupermarketsUD142/1987, in referring to the need to utilise grievance procedures, Employment Appeals Tribunal held:-
“The Tribunal considers that it is reasonable to expect that the 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 Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.
On the other hand, inAllen v Independent Newspapers (Ireland) Limited[2002] ELR 84 the Employment Appeals Tribunal held that it was reasonable on the facts of that case for the complainant not to have faith in the employer’s ability to properly or effectively address her grievances. However, in the instant case, the Court is not satisfied that there were factors present which might excuse the Complainant’s failure to formally complain to the Respondent before resigning. The Respondent had a grievance procedure in place and the Complainant was aware of its existence.
On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle him to terminate his employment without having sought to ventilate and resolve whatever grievance that he had through the internal procedures. The fact that he failed to do so negates any possible basis upon which his decision to resign could be regarded as a reasonable response to the situation then pertaining.
Determination
In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal nor was such as to show that the respondent no longer intended to be bound by one or more of the essential terms of his contract of employment. Accordingly, the Court must hold that the Complainant’s employment did not come to an end by dismissal.
The Court determines that the Complainant’s complaint is not well founded. The appeal is upheld. The decision of the Adjudication Officer is set aside.
The Court so Determines.
Signed on behalf of the Labour Court
Louise O'Donnell
15th December 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.