ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015050
A Security Officer
A Security 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: 03/09/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 8 of the Unfair Dismissals Acts 1977 – 2015, thiscomplaint was assigned to me by the Director General. I conducted a hearing on September 3rd 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.
The complainant attended the hearing without representation and was not accompanied. On his complaint form, he indicated that he did not require any special facilities at the hearing, but when he arrived, he said that after he submitted his complaint form, he sent an e-mail to request the services of a translator. He did not keep a copy of this mail and there was no evidence on the complaint file of an e-mail being sent to request a translator.
The complainant said that he has lived in Ireland for 10 years and that he would proceed with the hearing without a translator. I agreed to commence the hearing and to adjourn if, in my view, the complainant was compromised by not having a translator present. From the documents submitted by the complainant at the hearing which were written by him, I am satisfied that he has a proficiency in English. When the hearing concluded, he said that he had understood the proceedings and that he said everything that he wanted to say about his complaint and in response to the position submitted by his former employer.
For the respondent, the HR Manager and the Regional Manager attended and gave evidence.
I wish to acknowledge the delay issuing this complaint and I apologise for the inconvenience that this has caused to the parties.
At the opening of the hearing, the respondents corrected the name of the company and I have inserted the proper legal name on this document.
The respondent is a licensed provider of security and related services and is involved in the provision of static guarding, mobile patrol, electronic security, monitoring and cleaning services throughout Ireland. The complainant commenced as a security officer on August 4th 2015. He was assigned as a security officer on the site of a major American multinational company, and he generally worked on the night shift. He resigned on December 13th 2017. On his complaint form, he said that he resigned “due to behaviour of company.” As this is a complaint of constructive dismissal, the burden of proof is on the complainant in the first instance, to show that the conduct of his employer was such that he had no alternative but to resign.
Summary of Complainant’s Case:
At the commencement of the hearing, I remarked that I understood that the complainant’s former employer is a unionised company and I asked him if he had consulted his shop steward about his complaint. He said that he had been a union member, but he left the union because, in his view, he was “paying for nothing.”
A person making a complaint of constructive dismissal is required to send a written submission to the WRC in advance of the hearing, but the complainant did not send a submission. He brought with him a copy of information he received on foot of a data access request and he used some of this information in his presentation. He said that he would send in a written submission after the hearing, but he then changed his mind about this, saying that he wouldn’t have time to do so.
On October 2nd 2017, the complainant said that he was informed that a female colleague, another security officer on the site where he worked, made a complaint of harassment against him. On that day, he was suspended on full pay pending the outcome of an investigation into the complaint. At the hearing, he questioned why he was suspended, because, when he made a complaint about his supervisor in August 2017, his supervisor wasn’t suspended.
On October 6th, he attended a meeting with the HR Manager, at which he was accompanied by two work colleagues. He said that he was told what the issue was about, but he wasn’t given a copy of his colleague’s written complaint. This is refuted by the HR Manager, who said that he was shown all the documents relevant to the complaint, including Facebook postings and text messages.
On November 2nd, the complainant went on four weeks’ annual leave which was approved before he was informed about the complaint. At the hearing, he said that during this time, he did a test to become a taxi driver, which he passed successfully. When he returned from leave, he was invited to attend a meeting where he and the woman who made the complaint about him could engage in mediation to determine how they could work together in future. He said that he did not attend this meeting because he thought that the company was victimising him. On December 13th, when it was apparent that he would not engage in mediation, he was informed that he was being moved to a site where he would not have contact with the woman who made the complaint of harassment. On the same day, he sent an e mail to the HR Manager stating that he was resigning with immediate effect “due to ongoing issues.”
When he was asked why he resigned, he said that he asked the company not to put his supervisor on the investigation panel, as he felt that he would be on the side of the woman who made the complaint. He also said that it seemed to him that, by moving him to another site, the company was taking the side of his colleague. He agreed that he knew about the company’s grievance procedure, as he had resigned in August 2017, but then changed his mind when he was informed about how to process a grievance through the procedure. He said that he didn’t use the procedure this time, because the company was “telling lies” about him. At the end of the hearing, he said that, in November, he took a test to become a taxi driver, because he was planning to leave his job.
Summary of Respondent’s Case:
At the hearing, the HR Manager said that they had very little to go on to respond to a complaint of constructive dismissal. Before this latest resignation, the complainant resigned on August 15th 2017. On that occasion, the company asked him to withdraw his resignation and to use the grievance procedure to deal with the problem he was having with a supervisor. On August 22nd, he withdrew his resignation as he had engaged with the HR Department and the issues he complained about appeared to have been resolved.
Around six weeks later however, in early October 2017, a female member of staff made an allegation that the complainant was harassing her. At the hearing, it became evident that the reason he resigned was because he thought the company would take the side of the woman who made the complaint and because, when he didn’t engage in mediation, he was moved to a different work location where he would not have contact with this colleague. In their evidence, the managers in attendance said that they felt that as the complainant had refused to engage in a mediation, they wanted to ensure that there would be no conflict between the two employees on the site where they worked. They were also concerned that the client company would become aware of the conflict.
The complainant resigned from his job before the formal investigation into the complaint of harassment was completed.
On May 22nd 2018, the complainant brought a complaint of discrimination against his former employer to the WRC. The adjudicator did not uphold his complaint (ADJ-00010653). In their submission at the hearing of the instant complaint, the respondent’s representative said that, in the absence of specific details, they are surmising that the allegations of discrimination may have related to the complainant’s decision to resign.
In respect of a contractual entitlement to terminate his employment, the respondent’s submission states that no violation of the complainant’s contract occurred.
In respect of reasonableness, the questions to be answered are:
1. Did the employer act so unreasonable so that the employment relationship became untenable?
2. Did the employee act reasonably by resigning, particularly in respect of his responsibility to utilise the internal grievance procedures?
Referring to the Employment Appeals Tribunal (EAT) case of McCormack v Dunnes Stores, UD 1421/2008, the respondents said that the company acted reasonably at all times and in accordance with its policies and best practice. In the case of the allegation made against the complainant, the company went beyond any procedural obligation in its attempts to resolve the issues and the complainant refused to take part in a full investigation.
The complainant did not act reasonably by refusing to utilise with the respondent’s grievance procedure before reaching the decision to resign.
It is the respondent’s case that the complainant’s failure or his refusal to exhaust the grievance procedure and to see the process through, and, consequently, his behaviour in the course of the investigation was unreasonable. For these reasons, the respondent argued that the complainant’s resignation does not fulfil the test of reasonableness and cannot be determined to be a constructive dismissal.
Findings and Conclusions:
The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:
“dismissal, in relation to an employee means -
“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 without giving prior notice of the termination to the employer…”
The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, and considering how his grievance was addressed, was it reasonable for him, or was he entitled to terminate his employment?
The Reasonableness of the Employee’s Decision to Resign
The complainant resigned on December 13th 2017 when he was informed that he was being moved to a different location to work. The purpose of the move was to separate him from a colleague who made a complaint of harassment about him. He had declined the opportunity to resolve issues through mediation. Mediation may have avoided the necessity of moving him. In August 2017, the complainant used the company’s grievance procedure to good effect and withdrew a decision to resign at that time. He had a good reason to be confident that the process was effective. I find that it was unreasonable on his part, not to attempt to resolve his disgruntlement though the grievance procedure on this occasion also.
Considering the reasonableness of an employee’s decision to terminate his or her employment, in the case of McCormack v Dunnes’s Stores referred to in the respondent’s submission, the Tribunal concluded that:
“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his or her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.”
In the Labour Court case of Caci Non-Life Limited v Daniela Paone  UDD 750, the chairman, Mr Haugh the addressed the entitlement of an employee to terminate his or her employment due to a contractual breach by the employer:
“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”
From a contractual perspective, I find that there has been “no fundamental breach” as set out in the Caci Non-Life case referred to here, that made it impossible for the complainant to remain at work.
Looking at the facts of this case objectively, it is my view that the respondent dealt with the allegation of harassment against the complainant in a reasonable and constructive manner. They tried to resolve the conflict between him and his colleague through mediation, but the complainant refused to engage in that process. The respondent then decided to move the complainant to a location where he would not meet his colleague who had alleged that he was harassing her, but he interpreted this as the company taking her side. As I have already mentioned, if he was seriously of this view, he could have used the grievance procedure to have his concerns heard. The fact that he did not do so leaves me with the impression that he had no grievance to be resolved and he simply decided to leave.
The burden of proof required in cases of constructive dismissal is a high bar for a complainant. In this case, I find that the complainant has not reached the standard of the burden of proof required that demonstrates that the conduct of his employer was such that he had no alternative, but to leave his job.
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 has not demonstrated that the conduct of his employer was so unreasonable that he had to resign. Because of this finding, I have decided that this complaint under the Unfair Dismissals Act is not well founded.
Dated: 29th May 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Constructive dismissal, harassment, grievance procedure