ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00017040
A Security Officer
A Limited 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: 15/02/2019
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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.
Summary of Complainant’s Case:
The complainant alleges that he was constructively dismissed from his employment in April, 2018. He worked as a security officer for the respondent entity. He was working at a venue in a town in Wicklow. The complainant became concerned for his safety because when he was working on the door he had no way of contacting any of the staff inside, should he need assistance. He stated that he felt very vulnerable at times. He brought the issue up with the company director and ask if it would be possible for a radio system to be put in place. The director arranged for that to be done. The previous bar manager of the venue he was working in, used the radio system to the complainant's satisfaction. However, when the new manager Mr. K took over he refused to use the system as he did not like the feel of the earpiece in his ear. The complainant spoke to the company director about this and stated that once again he was feeling vulnerable on his own at the front door. On the night of 26th August,2017, the night of the Conor McGregor fight, there was an incident on the premises. A gentleman had insulted a female at the bar. The bar manager took it upon himself to remove the gentleman from the venue. The complainant talk objection to this stating that it was not the bar manager's role to remove individuals from the premises. He would have expected that the bar manager would have asked him to remove the individual from the premises. When the individual, who had been removed was outside he became very aggressive and started to throw flower pots and other items at the complainant. One of the items landed on the complainant’s foot, dislocating his toe. The complainant was out of work for two weeks.
A few months later there was another incident at the premises. The complainant got into a scuffle with an individual. The gardai were called and took statements from both the complainant and the individual. No charges were preferred against either party. The complainant states that the director accused the complainant of being overly aggressive on the night.
The company director than stated that he would move the complainant to a different venue. He was moved to a venue in Swords. The complainant tried to work there for a couple of weeks but between the commute and the shorter hours it just wasn't working out. He resigned his position on the 1st of April 2018. The complainant accepted that he did not raise a formal grievance in relation to the incident in August 2017 or in December 2017. Furthermore, he did not raise a grievance in relation to the issues he was having commuting to the Swords venue.
Whilst working for the respondent as a door security officer, the complainant was working as a teacher in a secondary school in County Wicklow. In January 2018 he became a full-time teacher in that school. He has not looked for other security work as he wants to concentrate on his teaching role.
Summary of Respondent’s Case:
The respondent accepts that the complainant was feeling vulnerable whilst working on his own at the front door of the venue in County Wicklow. That is why he arranged for the radio system to be put in place. Unfortunately, the respondent does not employ the bar managers of the various venues they are contracted to do security at. It is for that reason that they could not enforce the use of the radio system. Other employees of the respondent who worked at that venue stated that the bar personal left the radio behind the bar and on full volume. If the doorman had an issue and used the radio the bar staff could clearly see the lights on the radio and hear what was being said. Therefore, the fact that the bar manager does not have the earpiece inserted in his ear is not relevant.
The respondent accepts that there was an incident in the bar on the night of the Conor McGregor fight. However, they dispute the fact that the complainant was off work for two weeks following the incident. The complainant worked the following weekend and the weekend after that.
On the 21st of February 2018 the respondent received an email from the bar manager at the venue in which the complainant worked. The email stated :
" as you know we have had issues with x these past 12 months which are totally unacceptable for working as a doorman for x venue. He has been consistently late for every shift and only recently I rang him and woke him up to see where he was. He was down in Arklow and had fallen asleep. He has been ringing in sick on important nights whilst also being spotted out on those same nights socialising. Also, recently he rang in sick because his car was broken down.There is also the issue of when the gardai came up to him the night of the alleged assault and asked him to burn CCTV which he never told me until weeks later when the car they arrived to collect it. I'm sure you will agree that this is not acceptable behaviour and that is why we cannot and will not have him on our door again. You have tried other people which we liked, and I know you are finding it hard to get someone but I feel like you have dictated to us and are forcing him back on us even though we have stressed many times we do not want him. If he does turn up he will be sent home"
Following that email, the respondent had no choice but to place the complainant somewhere else. They approached a venue in Arklow, but they said that they did not want the complainant there. The only other place available at that time was in swords. The complainant did work in swords for a few weeks but then without notice of any issues handed in his notice to the respondent.
The director of the respondent contacted the complainant in August 2018 stating that they had just won a contract in a new venue in Arklow town and asked if he would like to take that position. The complainant refused.
The respondent states that it did not dismiss the complainant, that he has not been blacklisted and that they have offered him positions since he resigned his position in April 2018.
Findings and Conclusions:
The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977.
Section 1 of the Unfair Dismissal Act 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 the employer in the 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”
Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.
The burden of proof, which is a very high one, lies on the complainant. He must show that his resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.
“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”
If I am not satisfied that the “contract” test has been proven, then I am obliged to consider the “reasonableness” test
“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”
Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:
“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/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”
The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:
“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”
I am satisfied based on the evidence of both parties that the complainant failed to exhaust the internal process prior to resigning his position. He conceded that he failed to raise a formal grievance in relation to the August, 2017 issue and December, 2017 issue. Furthermore, he did not discuss the issues he was having in Swords venue before resigning. In those circumstances, I am satisfied that the complainant has not satisfied his legal obligation to exhaust the internal process prior to resigning his position nor did he put forward any argument as to why in his opinion, that might have been a futile exercise.
Based on the evidence adduced I can find nothing to suggest that there was a breach of the complainant’s contract. I must therefore assess the reasonableness of the complainant’s decision to terminate his contract. I find that complainant terminated his contract without first discussing his options with the respondent and without putting the respondent on notice of his grievances. Whilst the respondent had no other positions available at that exact time, positions become available regularly and the respondent was willing to offer those to him. In fact, they did call the complainant after he resigned to offer him a position in Arklow, but he declined. In those circumstances it was not reasonable for the complainant to terminate his contract of employment.
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.
The complaint fails.
Dated: 29th May 2019
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly