Complainant

Respondent

Anonymised Parties

General Operative

A Creamery

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00013878-001

11/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013878-002

11/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00013878-003

11/09/2017

The Complainant has been engaged by the Respondent as a general operative on a number of six-months contracts from 1st October 2014 until 18th July 2017. He was paid €420 gross a week and worked 39 hours.

The Complainant claims that he had to leave his employment due to the conduct of his employer. He also claims that the Respondent breached the Protection of Employees (Fixed-Term Work) Act, 2003 by failing to inform him of opportunities for permanent employment. The Complainant has sought re-instatement. However, at the hearing he confirmed that he no longer wants his job back and is seeking compensation.

The Respondent rejects the claims.

The complaint under Section 7 of the Terms of Employment (Information) Act, 1994 (CA-00013878-001) was withdrawn at the hearing.

The Complainant submits that he left his employment because he felt sick going to work each morning knowing that he had to do a job which was meant for two people and because he was accused of “disappearing” during his work day.

In his evidence the Complainant submits that during the first two months of his employment he had a partner. However, subsequently the partner was moved and the Complainant was doing the job on his own. He also submits that he expected to become a permanent employee after two years in the job. This did not happen. On the 18th July 2017 he was offered another six-months contract, which he declined and left the employment. He submits that he was treated unfairly and was being increasingly disrespected. He was accused of hiding and “disappearing” to other areas of the plant when he should have been working, which is completely untrue and unfounded. He submits that he felt utterly disappointed, upset, disrespected and angry. He was being undermined, disrespected and accused in the wrong. He submits that he eventually walked out from the company on the 18th July 2017 after refusing to sign another six-months contract. He submits that his mental health has suffered as a result of this ordeal. He has moments when he gets very upset when he thinks about it. Functioning normally on a day-to-day basis can be difficult and financially this has taken its toll. He confirmed at the hearing that he might have received the Respondent’s Grievance Procedures but he has never made a formal complaint, did not inform any of the managers of his concerns and did not approach the Union.

The Complainant secured a part-time job on 28 August 2017. However, he resigned after three weeks and is in full-time education since. The Complainant obliged to submit within a week post-hearing evidence of his attempts to mitigate his loss. However, as of the date of this decision no such evidence has been received.

The Respondent submits that the Complainant was not dismissed by the Respondent. He terminated his employment and declared that he no longer wished to work for the Respondent. The Respondent submits that it is a standard practice to initially furnish new employees with a temporary six-months contract to assess an employee’s suitability. Thereafter, following a performance review, if an employee is deemed suitable, a permanent contract is issued. The Respondent submits that there have been ongoing performance issues with the Complainant. Hence the need for the additional temporary contracts. The Respondent was not prepared to issue the Complainant with a permanent contract until the performance issues had been addressed by him. In July 2017 the Respondent decided to offer him another six-months contract. The Complainant refused to sign it and informed the Respondent that he no longer wished to work for the company. He left the premises immediately. On the next morning, the Complainant approached Mr. S, Technical Manager and asked for his job back. Mr. S declined. The Complainant’s request to have his job back was declined due to the performance issues. On the same day in the evening the Complainant went to the house of Mr. O, Operations Manager again requesting his job back. Mr. O advised him to contact the office during working hours. The Complainant did not make any further contact.

The Respondent submits that the Complainant was paid all his entitlements including his full week wage (resigned on Tue), annual leave and public holidays entitlements. The Complainant has never made an official complaint and has not informed the Respondent of his grievance. The Respondent’s Grievance Procedure provides for any complaints to be reported to a line manager, the Head of Production or the General Manager. The organisation is unionised and shop steward is also available to address any concerns.

S.8 of the Unfair Dismissal Act, 1977, as amended provides for making complaints regarding unfair dismissal in contravention of S.6 of that Act. For a claim of constructive dismissal to be properly brought under the Act, the Complainant must satisfy the definition in Section 1(1)(b) of the Act, which defines “constructive dismissal” as “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 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 burden of proof in constructive dismissal lies with the Complainant. In Allen v Independent Newspapers (Ireland) Ltd. 2002 ELR 84 it was held that the onus is on the Complainant to prove his case and the test for the Complainant is whether it was reasonable for him to terminate his contract.

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, 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 further 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.” According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.” Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

The Complainant must have acted reasonably in tendering his resignation. Ryan in “Redmond on Dismissal Law” (2017) argues that ‘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 employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignation. Where grievance procedures exist they should be followed: Conway v Ulster Bank Ltd. In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.[1]

The EAT has made it clear in a series of decisions, and followed by the Adjudication Service that the use of company procedures to address a grievance is a necessity. For example, in Patricia Barry-Relph v HSE t/a HSE North West (UD980/2014) it was held that peremptory resignation without reference to the company procedures is fatal:

“…the Tribunal finds that the claimant did not give her employer an opportunity to deal with her complaints. The Tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she had failed to exhaust any of the several avenues open to her.”

In Tierney v DER Ireland Ltd. UD866/1999 EAT stated “Central to this is that she shows that she has pursued to a reasonable extent all avenues of appeal without a satisfactory or reasonable outcome having been achieved”.Similarly, the EAT case John Travers v MBNA Ireland Ltd. UD720/2006 stated “…the Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case… In constructive dismissal cases, it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”. In Keane v Western Health Board UD 940/1988 it was held that a knowledge that a grievance procedure exists is germane.

I note that in the case before me the Complainant claims that he was required to perform work of two people and he was sick going to work every day. He also claims that he expected to become a permanent employee after two years of service but this did not happen. He claims that he was therefore justified in resigning. The Respondent rejects the claims and submits that the Complainant resigned on his own volition.

I am satisfied that the Complainant refused to sign the six-months contract offered to him and informed the Respondent that he does not wish to work for the Respondent any longer. I note that the Complainant asked for his job back on the next morning and in the evening when he visited one of the managers at home. On that occasion, he was told to contact the office within the working hours. He did not do so. I also note that at the hearing the Complainant stated that it was a mistake to ask for his job back and he would not agree to re-engagement or re-instatement and seeks compensation.

I am satisfied that the Compliant did receive a copy of the internal grievance procedures. A signed receipt of same was presented at the hearing. He confirmed that he has never made the Respondent aware of his concerns. He has never complained to any of the managers. He confirmed that the Respondent’s organisation is unionised. However, he was not a member of the Union and did not contact the Shop Steward for an advice.

Applying the relevant tests to the facts adduced in the instant case, I note that the Complainant did not proffer any evidence to demonstrate breach of contract. I am not satisfied that the Respondent no longer intended to be bound by one or more of the essential terms of her contract of employment. Consequently, I am not satisfied that the Respondent “is guilty of conduct which is a significant breach going to the root of the contract of employment.” I also cannot objectively construe the Respondent’s conduct towards the Complainant as being so unreasonable such that he was forced to resign in circumstance where the Respondent was not made aware of the Complainant’s grievance.

I am satisfied that the Complainant resigned from his employment voluntarily without reference to the Respondent’s procedures and therefore was not constructively dismissed.

On the basis of the written and oral submissions of the parties, and all the evidence adduced at the adjudication hearing, I find this complaint to be not well-founded and accordingly, the complaint fails.

The Complainant submits that he was given five six-months contracts in total. He felt strongly that at this stage he should have been offered a permanent contract as firstly, he felt that he worked hard and proved himself and secondly, he knew of other general operatives who had started after him and were offered permanent contracts. He submits that when he questioned this he was informed that he didn’t deserve it and he either signs the six-months contract or leaves the premises.

He claims that the Respondent has not informed him of opportunities for permanent employment.

The Respondent submits it is a standard practice that all new employees are furnished with a temporary six-months contract as a matter of probation. Thereafter, following a performance review a permanent contract is issued. The Respondent submits that there have been ongoing performance issues with the Complainant, notes of performance review meetings were presented at the hearing. The Respondent submits that it was not in a position to employ the Complainant on a permanent basis due to the unaddressed performance matters but offered him another temporary contract in July 2017.

The first issue for determination in this case is whether the Complainant was a fixed-term employee and so had locus standi to maintain the complaint.

Section 2 of the Protection of Employees (Fixed-Term Work) Act, 2003 defines “fixed-term employee” as “a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event…”

In Adeneler and Others v Ellinikos Organismos Galaktos C-212/04and in Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou C-378 /07 to C-380/07 the CJEU drew a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need. While work in the former category should normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category.

In Athlone Institute of Technology v Holland FTD 1120 the Labour Court noted “It seems clear from the definition at s.2 of the Act that the defining feature of a fixed-term contract is that the tenure which it creates is finite and that it will be discharged by performance at some point in the future (subject to the right of either party to terminate it on notice). It follows that in the case of a fixed-term contract determinable on the completion of a task or the occurrence of an event, the completion of the task or the occurrence of the event must be foreseeable at the time the contract is concluded. Were it otherwise then every contract of employment could be designated as fixed-term since all employment relationships can be lawfully terminated in a variety of circumstances which could constitute the occurrence of an event including where work runs out and a situation of redundancy arises.”

The Respondent submits that it was a standard practice to initially issue a temporary six-months contract to each new employee in order to assess their suitability. Following a performance review the contract would be replaced by a permanent one. The Respondent confirmed that in the period of the Complainant’s employment with the Respondent quite a few drivers, technical/maintenance staff and 3-4 general operatives were given permanent contracts. They would have been previously employed on temporary term basis to assess their suitability and following a period when their performance would have been evaluated as satisfactory they would be offered permanent positions with the Respondent. The Respondent confirmed at the hearing that the objective was to assess the Complainant’s suitability for a permanent position, which was available to him. In other words, at no stage was the Complainant employed and furnished with a fixed-term contract to meet needs that are temporary in nature. The Complainant was employed to fill a permanent position, subject to a satisfactory performance during an initial probationary period. This, due to the ongoing performance issues was extended on numerous occasions. From a fairness and transparency point of view, it is not ideal to retain employees on recurring temporary contracts in a situation when permanent positions exist. If performance appraisal is the rationale for doing so performance shortcomings could be addressed by, for example, providing assistance such as additional training, coaching etc. This type of system is not in line with best HR practice.   However, this matter is not before me.

Having carefully considered the evidence adduced before and during the hearing I find, in line with Adeneler and Angelidaki that the work undertaken by the Complainant was not a case of fulfilling a temporary and transient need of the Respondent but a case of fulfilling fixed and permanent needs of the Respondent. Accordingly, the Complainant is not a fixed-term worker within the meaning of the Act and therefore he has no locus standi under the Act. Consequently, I have no jurisdiction to grant him any relief under the Act.

The Complainant was not a “fixed-term employee” within the meaning of Section 2 of the Act and therefore he has no locus standi to pursue his complaint. The complaint is misconceived and fails.

Fixed-term, locus standi, misconceived complaint, constructive dismissal