ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009220
Parties:
| Complainant | Respondent |
Anonymised Parties | A Security Worker | A Security Firm |
Representatives | McInerney Solicitors | John Barry Management Support Services (Ireland) Ltd |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00012084-001 | 23/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00012084-002 | 23/06/2017 |
Date of Adjudication Hearing: 05/10/2018
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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.
Background:
The complainant worked as a security guard from 7th April 2014 until his employment ceased on 7th May 2017.
The respondent detailed that the complainant resigned his position.
Complaint CA-00012084-002 was withdrawn. |
Summary of Complainant’s Case: CA-00012084-001
The complainant’s place of work was at a large retail store and his security role involved monitoring the shop floor, reviewing cctv as well as assisting customers.
On 4th May 2017 he was working with another employee, Mr A, when a customer made some enquiries about merchandise, namely whether a shirt was suitable for African weather and whether a suitcase would fit in the overhead compartment of a plane. The complainant assisted this gentleman and noticed that a label had fallen off the suitcase and he stuck it back on and went back to Mr A who was due a tea break and the complainant took over manning the cameras.
On Saturday 6th May 2017 the complainant’s supervisor Mr B phoned the complainant asking if he was available to cover a shift and the complainant detailed he was not available but would be at work as scheduled the following day.
When the complainant arrived in for work on Sunday 7th May he was met by a representative of the respondent Mr C from Dublin and was told to go into a room referred to as the “holding room”, where he was shown cctv of the complainant’s interaction with the unidentified gentleman whom he had assisted on the 4th May. It was disclosed by Mr C that this unidentified man had stolen items from the retailer and it was suggested that the complainant had assisted in the crime.
The complainant was told that unless he resigned his position, the gardaí would be called and the complainant was repeatedly told to be sensible and resign. The complainant was told by Mr C “I know Nigerians, they lie a lot and never admit they did anything wrong. I have been to Nigeria several times and I know they lie and never accept fault; you have to resign”.
The complainant protested his innocence but was told to resign. Under so much pressure and feeling threatened he signed a letter of resignation dictated by Mr C. When he resigned, Mr C held up his phone to a cctv camera in the holding room, and it appeared to the complainant he was showing a message to a cctv operator on the other side and shortly after that the gardaí arrived.
The complainant denied his involvement in any theft to the gardaí who asked him why he resigned. There have been no charges brought by the gardaí against the complainant.
It was outlined that the resignation of 7th May was forced on the complainant and that no details of allegations against the complainant were given. Despite efforts to contact the respondent afterwards , the respondent has refused to engage with the complainant. The complainant was never advised of the specific allegations against him and the meeting was conducted without fair procedures.
Case law cited included Kwik-Fit (GB) Ltd v Linehan [1992] IRLR 156, Charles Shinkwin and Donna Millett, Canon v Blake Bros UD2116/2011, Shortt v Data Packaging [1994] 5 ELR 25.
The complainant advised that his employment had ended in May and that he secured various temporary roles since July at rates less than that which he had previously secured. |
Summary of Respondent’s Case: CA-00012084-001
It was outlined that dismissal was in dispute as the complainant had resigned.
The respondent outlined that complainant was observed on 4th May 2017 in the company of a male member of the public. It was outlined that the complainant was seen in the company of this other individual who was walking around putting products in his basket and that the complainant was seen removing a security label. The complainant was seen walking with the other individual towards the exit and that the unidentified male member of the public left the shop without making payment for the products that he had.
When it had been discovered that items had been removed without payment, the manager Mr C met the complainant in the holding room in the shopping centre on the earliest date possible where the complainant was questioned about the incident. While the complainant initially denied the allegations, Mr C advised the complainant that he had a choice either to resign or else the company would initiate a disciplinary process which could result in dismissal. The complainant considered the matter and said he would resign which he did. It was the complainant who wrote the letter and looked for some assistance with spelling.
It was denied the respondent said that if the complainant resigned the gardaí would not be involved; as the garda had already been contacted in advance and therefore the respondent could not have made such a promise. Furthermore, it had been detailed that the complainant had denied knowledge of the individual accused of theft, but the complainant had been seen on cctv talking to this person earlier. Mr C denied that he said anything disparaging against people from Nigeria and advised that he in fact had said the honourable thing is to resign and that Nigerians are honourable people.
The respondent advised that all cctv recording had been misplaced and that the complainant’s letter of resignation had also been misplaced. |
Findings and Conclusions: CA-00012084-001
The complainant details that he was forced to resign his position following an allegation that he was involved in an incident of theft at a retail store when he was performing security duties. The respondent details that they offered the complainant the opportunity to resign or go through a disciplinary process and the complainant chose to resign.
Section 1 of the Act details this form of dismissal where it provides: “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.”
As dismissal is in dispute, the burden of proof rests with the complainant in the first instance. Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment. In such circumstances the employee would be “entitled” to resign his/her position, which is often referred to as the “contract test”. This requires that an employer 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 ”. This was set out in Western Excavating (ECC) Ltd v Sharp[1978] IRL 332. 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/she is justified in leaving. The Supreme Court in Berber detailed, “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.” This places the burden of proof on the employee to show that his resignation was justified in all the circumstances.
The question arises therefore, whether because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for him, to terminate his contract of employment. In normal circumstances a complainant who seeks to invoke the reasonableness test, must also act reasonably by providing the employer with an opportunity to address any grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment, before taking the step to resign which has been set out in Conway v Ulster Bank LimitedUDA474/1981.
Some of the facts of this instant case were not in dispute. The complainant arrived for work on the 7th May and was not aware that the respondent wished to meet him to discuss the incident that had occurred on the 4th May. The result of that meeting was that the complainant resigned.
There was sharp conflict in some of the evidence. The complainant disputed that he had been involved in any wrongdoing with the person who was alleged to have stolen property. The respondent said it was very obvious that the complainant assisted this person and was engaged in a conversation with this person both prior to and during the incident and therefore it was alleged was involved with the alleged theft. The cctv which the respondent relied on has been mislaid.
The respondent set out that security personnel are not permitted to engage with the public and the complainant detailed that it is part of his role is to assist the public. There was also conflict in evidence between the parties regarding whether the respondent dictated the letter or whether the complainant wrote it. The complainant detailed that he was told that if he resigned there would be no gardaí but then the gardaí appeared after Mr C held up something to cctv. The letter of resignation has also been mislaid.
Having examined the evidence and considered the written submissions of the parties I find that the complainant was constructively dismissed owing to the unreasonableness of the respondent in the manner described in his evidence. I make this finding for the following reasons:
The complainant arrived for work and was brought to a ‘holding room’ without any knowledge of what the meeting was about. The respondent relied on cctv evidence to give the complainant an option of resignation and I note that this cctv is no longer available nor is the cctv available where it was alleged the complainant had engaged in conversation with the member of the public, prior to the removal of products from the shop. While the respondent detailed that employees are not allowed to engage with members of the public who frequent the store, the respondent did confirm that employees are not expected to ignore queries from the public and it would appear credible that the complainant might be required to assist members of the public in the manner in which he describe in this instant case. The only 2 people in attendance in what was referred to as as the ‘holding room’ was the complainant and Mr C. I note the complainant was not provided with any advance notice of this meeting, was not provided with details of the company’s disciplinary/ grievance procedure and was not afforded the opportunity to have anyone present with him. Having heard all the evidence, I must prefer the complainant’s version of events as to what took place in that room.
I also note that the complainant made efforts to contact the respondent after the event regarding his resignation through his representative, but the respondent would not engage with him. As detailed in Kwik-Fit (GB) Ltd v Linehan [1992] IRL 156, “a reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable …then such enquiry is ignored at the employers risk”There is an expectation of reasonableness as detailed in Byrne v Furniture Link International Ltd, where the Tribunal considered the reasonableness of the respondent’s behaviour. It appears that the respondent in this instant case, pursued a disciplinary matter without reference to any procedure. I find that pressure was exerted on the complainant to resign and that the complainant’s resignation was not motivated by other factors, such as in the case of Sheffield v Oxford Controls Company Ltd [[1979]IRLR 133, the offer of say financial benefits,and the respondent refused to engage with him afterwards when the complainant was clearly unhappy with his decision. I therefore uphold the complaint and find that the complaint of constructive dismissed is well founded.
When considering the remedies available I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the more appropriate redress. With regards to mitigation of loss, I am satisfied that the complainant applied for a number of roles and has secured numerous contracts of employment which have been of a temporary nature with a lower rate than he had secured previously. I find the complaint well founded and taking into consideration future loss of earnings owing to the temporary nature of the roles secured, attributable to dismissal, I find it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €6,500. |
Summary of Complainant’s Case : CA-00012084-002
The complainant withdrew this complaint. |
Decision:
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 the complaint well founded and taking also into consideration future loss of earnings owing to the temporary nature of roles secured attributable to dismissal, I find it is just and equitable in all the circumstances of this case to order the respondent to pay the Complainant the sum of €6,500. |
Dated: 9th December 2019
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Constructive dismissal, theft, resignation |