ADJUDICATION OFFICER DECISION
A Motor Dealership
Fergus O’Higgins, BL
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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.
The Complainant contends he was constructively dismissed from his employment.
Summary of Complainant’s Case:
The Complainant worked for the Respondent for over 8 years, first as an apprentice then as a mechanic. The employment was relatively uneventful until the last twelve months. In that period, the Complainant was subjected to unacceptable behaviour from the Respondent. A number of allegations / incidents were outlined in which it is contended the behaviour of the Respondent was such that the Complainant could not reasonably be expected to put up with it, summarised as follows:
The Complainant contends that the Respondent Mr AM spoke about him in derogatory terms, he was accused of driving too fast into the yard and of leaving a smell of food in a customer’s car.
He was told indirectly that he was banned from driving customers’ cars.
It is contended that AM spoke to the Complainant in an aggressive tone and threw a piece of paper towards him.
The Complainant is a sportsman and it is alleged that he was sneered and laughed at by AM in relation to his performance on the field.
The Complainant went out on sick leave and submitted certs for work related stress on 5th October 2018 to 5th November 2018 at which time he left his employment. The Respondent never contacted him in that period until the WRC complaint issued. It is also alleged that the Complainant was called into the Accountant’s office and some reference was made to discrepancies about sales, and that it was following this relationship deteriorated between the Complainant and Respondent. The Complainant denies all knowledge of any grievance procedure in the employment.
Summary of Respondent’s Case:
The Respondent unequivocally denies the claim as set out. The Respondent only became aware of any serious dispute between the parties upon receipt of the WRC complaint form. The Respondent agrees that he had to request the Service Manager to instruct the Complainant not to drive cars until further notice. This was because on 1st October 2018 Mr AM observed a car being driven by the Complainant at excessive speed, causing a member of the public to step back onto the kerb. It is argued that this instruction was not without precedent and was not an oppressive or unreasonable one. A meeting was held subsequently at which the Complainant stated that he was unhappy with AM saying he was driving customers’ cars too fast and eating food in customers’ cars. AM acknowledged that he was unhappy with the speed at which he had seen the Complainant driving but he had not mentioned the eating of food to anyone. There then ensued a conversation about the Complainant’s work and the Respondent later showed the Complainant some photos of a job he was dissatisfied with. At no point in the meeting were voices raised or behaviour aggressive. The Complainant last clocked in on 5th October 2018. The Service Manager tried to contact him when he did not show up for work the following week. On 15th October the Complainant submitted a doctor’s note stating he would be absent due to stress at work for the period 8th October to 22nd October 2018. Attempts were made to contact the Complainant in December but were unsuccessful. Contact was made between the parties’ solicitors and the Respondent’s solicitor and the WRC indicating dismay that the Complainant had not communicated with the Respondent prior to making his complaint of Unfair Dismissal. It is argued that as the Complainant had not communicated his alleged issues to the Respondent at any point prior to making his complaint to the WRC and as he had not engaged any of the internal grievance procedures as set out in the Employee Handbook, he failed to allow the Respondent to address his concerns. Legal submissions were made in relation to the requirements in order to succeed in constructive dismissal claims, e.g. Conway & Ulster Bank Ltd UD 474 / 1981 where the Employment Appeals Tribunal makes it clear that an employee must invoke the employer’s grievance procedures in an effort to resolve his grievance before initiating a claim for unfair dismissal.
Findings and Conclusions:
The definition of constructive dismissal as provided for in Section 1 of the Act is;
“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”
It is well established that there is a high threshold of onus on the employee to prove that the conduct of the employer was such, that the employee would have been entitled, or it would have been reasonable for him to terminate his contract of employment without giving prior notice of the termination to the employer.
I note the Complainant’s evidence that the working relationship between himself and his employer deteriorated during the last number of months of his employment. There was a conflict of evidence regarding the meeting between the parties during the first week in October 2018. I accept the Complainant’s evidence that the meeting was hostile, however, I am not convinced that it was such as to prove the conduct of the employer was such that the Complainant had no choice but to leave his employment. While I note that the Complainant denies all knowledge of the Employee Handbook, which has extensive grievance procedures outlined therein, it is a fact that he did not lodge any formal grievance with the Respondent and this indicates an unreasonable failure on his part, whether or not he had sight of the actual procedures. He could have made a complaint to his immediate manager. Just as an employee is entitled to due process and the right to be heard, the employer must be given an opportunity to address grievances of the employee before the employee simply walks out of his job. In this instant case, I find that the Complainant has not reached the threshold of proof required to succeed and I find therefore that his complaint that he was unfairly dismissed to be not well founded.
I have decided that this complaint is not not well founded.
Workplace Relations Commission Adjudication Officer:
Unfair dismissal, constructive dismissal, threshold of proof.