ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013178
Complaint 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: 14/08/2018
Workplace Relations Commission Adjudication Officer: Marian Duffy
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant was employed by the respondent as a security officer from the 1st April 2016 until 5th January 2018 when he resigned from his employment. He worked 40 hours per week and was paid €964.60 gross per two weeks. He is claiming constructive dismissal.
Summary of Complainant’s Case:
The complainant submitted that from October 2016 to September 2017, he was assigned to work on a construction site (site A) in a safe pass area without a safe pass. He told the contracts manager that he did not have the documentation to work there and he understood from him that the issue would be resolved. Before he went on the site he was required to do an induction course and he was then issued with a pass with his photo which allowed him to have access to all areas on the site. He worked on the site for several months without a safe pass and he brought this to the attention of the contracts manager on several occasions.
The complainant said that it would take about 3 to 4 days to do the safe pass course, but the contracts manager refused to give him time off to do it. He then contacted SOLUS about a course and to complain about not having a safe pass and he was referred back to his employer. He said that if anything happens on the construction site and he does not have a safe pass there are serious implications for him.
After complaining a few times to the contracts manager, he was moved to a site in Finglas. He was moved between site A and the Finglas site a couple of times and there was a serious disagreement with his manager about payments when he worked in the Finglas site. The company paid back the money he was owed. He sought an apology but none was forthcoming.
The complainant said that there was a complaint made against him when he was on site A. His manager called him to a meeting and told him he was being taken off the site with immediate effect. The complainant said that he looked for an explanation and asked that his union be present at the meeting. He said that he was told that the company did not recognise the union. He said that he found the managers tone disrespectful, arrogant and ignorant. He was not given an opportunity to defend himself. He said that he left the meeting and went outside the office for 15 to 20 minutes but the manager never came back to him. He then left the site as instructed and he went home. He did not hear from the company for nearly 2 weeks. He then attended meeting with the company and his manager alleged that he had absented himself from the site without permission. He pointed out that he was instructed to leave the site by the manager. The difficulties were sorted out and he got a courtesy payment in respect of the incident. He was assigned to another site (site B).
The complainant said that he worked on site B for a number of months without any difficulties. He said that he requested a transfer to a site in Kildare village. He was offered the position, but he would not earn as much money. After considering the move for a number of week, he turned it down and he decided to resign from the employment.
He said that he decided to resign because he could not live on the money he was getting after being transferred from site A. He had tried to get an apology from the contracts manager about his behaviour but none was forthcoming and his grievances with him were never resolved.
Summary of Respondent’s Case:
The construction manager and the complainant’s boss said that he knew that the complainant did not have a safe pass when he was assigned to site A. He said that the complainant worked in the non-construction area of the site and his card would not have allowed him onto the construction site as there was security control at the entrance. Their client at site A determined the level of control on their site and the complainant’s security card would reflect that and they had a team of health and safety officers patrolling the site and staff were checked hourly. The complainant was never assigned to an area needing a safe pass. He said that the complainant never discussed the safe pass with him.
The contracts manager said that he asked the complainant if he would like to cover for holidays at the Finglas site and he agreed. He worked on the Finglas site covering holidays and returned to site A after that. He said that he never removed that complainant from the site. He said that he got a report from the client at site A that the complainant had approach a female staff and raised issues about her driving. The contracts manager was in the security office and the complainant came in and he asked him what happened. He said that the complainant looked at him with a blank expression walked out of the office got into his car and drove out of the site. He tried to contact him a couple of times afterwards, but he got no response. A complaint was made to management about the safe pass and about extra pay the complainant alleged he was promised for working on the other site. He said that while he never agreed to give him extra money for working on the Finglas site, the respondent did not want him out of pocket and he was paid a sum of money for attending at this site. He had no further contact with the complainant after that. He said that he was never rude or aggressive to him and he treated him with respect at all times.
On 11th September2017 the complainant made a complaint to the Health and Safety Manager about working on site A without a safe pass. The H&S Manager said that she investigated this complaint. She said that it was a mixed site with construction areas which requiring a safe pass and areas which it was not a requirement. Access to areas requiring the safe pass are security controlled. The complainant worked mainly at the main gate or at the delivery gate areas which did not require a safe pass. She said she visited the site and checked all the records and the complainant was never assigned to an are requiring a safe pass.
On the 29th September 2017 the complainant together with his union representative attended a meeting with HR to discuss his grievance about the safe pass and the claim for money in relation to working on site 2. It was explained to the complainant that an audit had been carried out on site 1 and he was not asked to work in any area which required a safe pass. A further meeting was held with the complainant on the 15th November 2017 and he was again informed that no breach of the safe pass requirements took place while he was working on site 1. In relation to his claim for pay for extra hours, HR undertook to pay this claim. The complainant also requested a transfer closer to his home and he was informed that his request would be considered. He was later informed that he would be transferred to Kildare Village which was deemed closer to his home.
The complainant made a formal complaint to the HSA about the safe pass. A formal investigation was conducted within the grievance procedures. The investigation was conducted by the Regional Manager and the complainant was interviewed on the 15th December 2017. On the 22nd December 2017, the complainant tendered his resignation giving 2 weeks’ notice. The Regional Manager wrote to him on the same day requesting him not to resign and she emailed him again on the 3rd January 2018 requesting to meet him about his resignation. The complainant responded saying he would not change his mind about resigning going on to say he was resigning because he was placed on a site without a safe pass.
It was submitted that the onus is on the complainant to establish constructive dismissal. In light of the definition in the Act and established principles adopted by the EAT and the Courts there is a burden on the employee to demonstrate that:
(a) The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or
(b) The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.
It was submitted that it is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the respondent’s position that neither criterion has been met.
In relation to the contract test, the respondent at all times operated within the terms of the contract of employment between the parties and no violation occurred.
In relation to the reasonable test, it is the respondent’s position that it acted reasonably and fairly at all times in accordance with its policies, best practice and appropriate conduct. Every attempt was made to address the grievances raised by the complainant. Two full investigations were carried out into the grievances raised by the complainant in relation to health and safety issues but the complainant resigned before the report was issued. There is an obligation on the employee before resigning to exhaust all the internal procedures before tendering his resignation. I was referred to the case of Conway v Ulster Bank and McCormack v Dunnes Stores, UD 1421/2008 both cases stated that an employee must act reasonably and exhaust all internal procedures.
It was also submitted that the case of Fitzsimons v Mount Carmel HospitalUD855/2007 is also relevant. In that case the claimant resigned and an offer to return to work was made to him. The claimant rejected the offer of return on the grounds that his relationship with his manager had deteriorated so much. In the complaint herein, the complainant was given a new work site closer to home and under a new manager but he resigned 5 weeks later.
The EAT stated “It is regrettable that this final step [acceptance of the return to work offer] was not taken and the Tribunal finds that it was unreasonable for the applicant not to have seen this process through. The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties.”
It is the company’s position that it made clear, reasonable and tangible attempts to fairly address the complainant’s grievances in accordance with the grievance procedures and to engage meaningfully with him to resolve the issues. The complainant failed to exhaust the procedures. In the circumstances his resignation cannot be deemed to be a constructive dismissal.
Findings and Conclusions:
The matter I must consider is whether the complainant was constructively dismissed as he resigned from the employment. Section 1(b) of the Unfair Dismissals Act 1977 defines dismissal as:
“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,
In relation to a breach of the contract of employment the judgment in Berber v Dunnes Stores Limited  IESC] 10 is the authority. The Supreme Court held that the test for whether the conduct had breached the implied term of mutual trust and confidence in a contract of employment is an objective one. Finnegan J. held:
“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at.”
The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp  1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. The ‘contract test’ is set out 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.”
The Labour Court went on to say: “Where an employer commits a repudiatory breach of contract the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.
….. the definition deals with a situation in which the employer conducts 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. Thus, an employer's conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving there and then.
According to the Supreme Court in Berber cited above, “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 to determine if it is such that the employee cannot be expected to put up with it.”
It places the burden of proof on the employee to show that his resignation was justified in all the circumstances. The complainant put forward a number of matters to support his claim of unacceptable behaviour by the respondent.
The first related to being put on a construction site without a safe pass. I note that this matter was investigated by the Health and Safety Manager and she determined having reviewed the records that the complainant never worked in any area of the site requiring the safe pass. I note that the complainant made a formal complaint about the matter and he resigned before the formal investigation was completed. The second issued raised related to a complaint about his manager not keeping a commitment to pay extra for working in Finglas. I note that following a meeting with management that this matter was resolved. The complainant said that he was looking for an apology from his manager about his treatment but none was forthcoming. It is clear that the complainant was transferred to site B and to a different manager because of the alleged difficulties he was having with his manager on site A. I note that the complainant request for a site nearer his home was granted and he was assigned to Kildare Village. The complainant worked there for about 5 weeks and then resigned. He said that he resigned because he was earning less and he had never got an apology from his previous manager and his grievance was not resolved.
Having reviewed the evidence in relation to complaints, I am not satisfied that the complainant has established that the respondent’s conduct was unreasonable in the circumstances. I am satisfied that the respondent investigated the issues raised by the complainant and resoled the issues. The complainant resigned before the conclusion of the formal investigation about the safe pass.
In applying the jurisprudence of the Labour Court in the case of Paris Bakery cited above the Labour Court in considering conduct said: “ be regarded as so unreasonable as to justify the employee in leaving there and then.
Therefore, the test I must apply is: was the conduct of the employer so unreasonable that the employee would be justified in resigning “there and then”? I note that the complainant tendered his resignation on the 22nd of December 2017 but he presented no evidence of any unreasonable conduct of the employer proximate to that date which would justify his resignation.
I cannot accept that the respondent was guilty of conduct which “is a significant breach going to the root of the contract of employment” applying the test in Paris Bakery cited above. The evidence tendered by the complainant is not sufficient to support a complaint of constructive dismissal. In Berber cited above the Supreme Court test for constructive dismissal said that “the conduct of the employer must be unreasonable.” I find that no evidence has been presented by the complainant to support the contention that the respondent’s conduct met this test.
I note that the respondent asked the complainant not to resign and emailed him inviting him to a meeting to discuss the matter but the complainant confirmed his resignation. In McCormack v Dunnes Stores cited above, I note that the EAT held that the employee had to demonstrate that he “had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The complainant did not agree to meet the respondent or to await the outcome of the formal investigation under the grievance procedures before confirming his resignation.
For all the above reasons, I find that the complainant has failed to meet the threshold to establish a complaint of constructive dismissal in accordance with Section 1(b) of the UD Act and as set out in the caselaw cited above. Therefore, the complaint fails.
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.
I find that the complainant was not constructively dismissed.
Dated: 20th November 2018
Workplace Relations Commission Adjudication Officer: Marian Duffy
Unfair Dismissals Act 1977, constructive dismissal.