ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00015214
A Car Park Attendant/Supervisor
A Car Park Operator
Peninsula Group Limited
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: 22/07/2019
Workplace Relations Commission Adjudication Officer: Orla Jones
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints 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.
This dispute involves a claim by the complainant against the respondent that he was subjected to a Constructive Unfair Dismissal. The complainant referred this complaint against the above respondent on the 15th of June 2018.
The complainant has submitted that he was subjected to a constructive unfair dismissal by the respondent on the 8th of January 2018. I proceeded to a hearing of these complaints on the 27th of July 2019. The cognisable period for this claim dates from the 16th of December 2017 and ends on the date of submission of the claim to the WRC on 15th of June 2018.
Summary of Complainant’s Case:
The complainant submits that
He was employed by the respondent from 2nd of June 2015 as a Car Park Attendant in the Green Car Park following which he progressed to a supervisory role in October 2015,
In April 2016 the respondent acquired the contract to run the Blue Car Park in the same location and staff from the blue car park transferred to the respondent,
The complainant after the transfer was then working with the staff of the Blue Car Park and he was now answerable to supervisor Mr. D,
The complainant was subjected to bullying and harassment by his supervisor Mr. D,
The complainant was constantly rostered to work weekends while other staff were not,
The complainant lodged a number of grievances with the respondent which were the subject of numerous investigations but with no outcomes,
his most recent grievance was lodged in October 2017, the complainant attended his GP and was absent from work on 2 weeks sick leave from 13th of October 2017, the respondent advised the complainant that they could not progress his grievance while he was out on sick leave,
The complainant returned to work on 2nd of November 2017 and a grievance meeting took place on 16th of November 2017,
the complainant refused to sign the minutes of the grievance meeting and a further meeting was scheduled for December but was later rescheduled for January following discussion between the parties,
The complainant resigned his employment on 8th of January 2018.
Summary of Respondent’s Case:
The respondent submits that
The Complainant commenced employment with the respondent as a car park attendant in the Green Car Park in June 2015,
The complainant transferred to the Blue Car Park in April 2016 after the respondent took over the contract of the running of that car park,
Under a TUPE agreement the respondent took over responsibility for additional staff who had been employed in the Blue Carpark for a number of years,
The Blue car park staff transferred to the respondent under their existing terms and conditions which were different to those of the complainant and to those of the respondents existing staff,
The complainant submitted grievances in June and July 2016 which were resolved, the complainant submitted another grievance in January 2017, this was replied to by Ms E on 13th of February 2017.
Arising from meetings of 16 March, 23 March, and 21 April 2017 an agreement was reached between the parties in full and final settlement of outstanding grievances,
In August 2017 the complainant raised an issue in respect of his pay in a week where he had been rostered and paid for 35 hours it was agreed that the complainant would be paid for the 5 hours he did not work as he should have been rostered for 40 hours,
The complainant lodged a further grievance in October 2017 regarding a request to change the roster for 12th of October 2017 which was refused,
The complainant went on sick leave on 13th of October 2017 and provided a return to work cert on 2nd of November 2017. The complainant was invited to a grievance meeting on 7th of November 2017 to address the roster issue of 12th of October 2017 and the complaint regarding Mr. D s treatment of him, this meeting took place on 16th of November 2017 at the complainant’s request,
The complainant refused to sign the minutes of this meeting due to a reference in the minutes to the complainant having ‘self diagnosed’ himself and a further meeting was scheduled for December 2017 but was later rescheduled for January following discussion between the parties,
The complainant resigned via a phone call on 8th of January 2018 and also confirmed his resignation by email of that date,
On 11th of January 2018 the complainant advised the respondent that he had an interview for another job on 11th of January and requested a reference, A reference was provided on 17th of January.
Findings and Conclusions:
Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:
“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”.
The burden of proof rests with the Complainant in this case.
There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.
In Western Excavating (ECC) Ltd v Sharp  IRLR 27 the “contract test” is summarised 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.”
Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:
“whether the employer 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 requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:
“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”
Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated,
“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”
The complainant at the hearing gave a lot of evidence in respect of alleged incidents which had taken place and treatment he had been subjected to by the respondent however I am mindful that the cognisable period for this claim dates from the 16th of December 2017 and ends on the date of submission of the claim to the WRC on 15th of June 2018.
The complainant told the hearing that he had resigned his employment with the respondent on the 8th of January 2018 after being subjected to bullying and harassment by Mr. D of the respondent and having received unfavourable rosters which repeatedly rostered him to work weekends more often than other employees an issue which the complainant had on numerous occasions raised with the respondent,
The complainant stated that he had worked for the respondent since April 2015 and had never had any problems or issues at work until Mr. D became his supervisor and the person in charge of drawing up the rosters. The complainant told the hearing that he was constantly rostered to work weekends and when he questioned this he was told that it was cheaper to have him work weekends as he was not entitled to double time for weekend work unlike other staff who had different terms and conditions to the complainant and who had transferred to the respondent via a TUPE agreement.
The respondent at the hearing confirmed that the other staff who transferred to the respondent via a TUPE agreement had different terms and conditions to the complainant as they had retained their previous terms and conditions when they were transferred to the respondent. The respondent advised the hearing that the staff of the blue car park who transferred in via TUPE had seniority over the complainant and that Mr. D who had worked in the blue car park for over 10 years became the complainant’s supervisor. The respondent stated that the complainant following the transfer had to be amalgamated into the roster with the blue car park staff and that Mr. D was in charge of that roster. The respondent added that Blue car park staff retained their contracts under the TUPE and added that the complainant was a direct employee of the respondent whose contract specified that his working week ran from Monday to Sunday, the respondent stated that the complainant was paid a composite rate in recognition of this. The complainant advised the hearing that he had raised a number of grievances in relation to this and other matters and that they had not been resolved to his satisfaction.
Both parties advised the hearing that the complainant had previously raised grievances in respect of his rate pay and in respect of alleged his Sunday rate of pay, it was agreed that these issues were resolved with the respondent agreeing to an increase in the Sunday rate of pay for all staff and also agreeing an increase in the complainants daily rate of pay. The complainant had also raised issues in respect of a failure to roster him for cash counting, this was also resolved as the complainant was then rostered to count cash on Wednesdays. The complainant also stated that he had on one occasion been rostered to work 35 hours when he should have been getting 40 hours per week, he stated that he had raised this with the respondent and the respondent had agreed to pay him for the extra five hours as he should have been rostered for 40 hours. A similar agreement was reached for another period where the complainant worked 72 hours over two weeks and it was agreed that he be paid for 80 hours.
The complainants most recent grievance was lodged in October 2017 and had been the subject of a grievance meeting in November 2017.
The complainant advised the hearing that he had on 6th of October 2017 requested time off on the 12th of October to attend an event but this request was refused. The respondent advised the hearing that employees were required to give two weeks’ notice in writing if they were requesting a particular day off. The complainant told the hearing that he had then arranged to swap shifts with a colleague Mr. B which would allow the complainant to be off work on the afternoon of 12th of October however as a result of a misunderstanding between the complainant and Mr. B both employees showed up to work Mr. B’s rostered shift at 6 am on 12th of October. From the evidence adduced it emerged that both employees refused to go home and come back for the later shift and following this there was a heated exchange between the complainant and his supervisor Mr. D on that occasion and that Mr. D had ordered the complainant to go home and come back in the afternoon as per his roster, the complainant refused to go home as he wanted to be off that afternoon and had arranged the swap with Mr. B to facilitate this. The complainant emailed Ms, E after this incident and also phoned Mr. R Client Business Manager who came to the car park straight away to try to resolve the matter. Witness for the respondent Mr. R advised the hearing that the end result of this was that the complainant did get the afternoon off as Mr. D made arrangements to cover the shift.
The complainant went on sick leave the next day the 13th of October 2017. By email of 19th October the complainant raised a complaint regarding an alleged shortfall in his sick pay, the respondent replied to this on 23rd of October and also advised the complainant that Mr. D had been spoken to about the incident of the 12th of October. The respondent also advised the complainant that it could not deal with any further issues until the complainant returned from sick leave or was deemed fit to return to work.
The complainant advised the hearing that he provided a return to work cert on 2nd of November 2017 and was invited to a grievance meeting on 7th of November 2017 to address his grievance. This meeting was deferred to the 16th of November 2017 at the complainant’s request. The complainant had refused to sign the minutes of this meeting due to a reference in the minutes to the complainant having ‘self diagnosed’ himself, a further meeting was scheduled for December but was later rescheduled for January following discussion between the parties. This meeting never took place as the complainant resigned his employment via a phone call on 8th of January 2018 and also confirmed his resignation by email of that date.
On 11th of January 2018 the complainant advised the respondent that they had an interview for another job on 11th of January and requested a reference, A reference was provided on 17th of January.
The complainant submits that he resigned his employment as he felt he had no other option due to the way he was treated by the respondent. The complainant stated that he was constantly raising grievances but with no outcome or resolution being reached. The complainant stated that there were several meetings but no outcomes. The respondent told the hearing that the complainant had resigned his position while he had an open and ongoing grievance which was being dealt with by the respondent. The respondent advised the hearing that the complainant had raised previous grievances which had been dealt with by the respondent and cited examples of the Sunday pay issue and the complainant being rostered to work less than 40 hours but still being paid for 40 hours.
Both parties agreed that the complainant had an open and ongoing grievance at the time of his resignation and also that this grievance had been ongoing since October 2017 but had to be postponed due to the complainant’s sick leave and again following a request form the complainant that it be deferred until after the Christmas period. In addition, the respondent stated that the complainant after submitting his grievance raised further issues at the grievance meeting which then had to be investigated as part of the grievance.
The respondent advised the hearing that that the complainant had not in his evidence pointed to any specific incident or behaviour by the respondent at the time of his resignation or in the time leading up to his resignation which could or would have left the complainant with no option but to resign at that point in time. Witness for the respondent Mr. R Client Business Manager advised the hearing that he had visited the car park twice a week during the relevant time and had spoken with the complainant and that no further issues were raised with him after the complainant return from sick leave while acknowledging that the grievance process was ongoing in respect of a previous grievance.
The respondent submits that it was not reasonable of the complainant to resign given that his most recent grievance was being dealt with and given that previous grievances had been dealt with to the complainant’s satisfaction. The complainant submits that he was left with no choice but to resign as the respondent failed him despite numerous complaint and grievances being lodged by the complainant. The respondent in reply to this stated that the complainant at the time of his resignation had a live grievance but instead of waiting for the grievance and the additional issues raised during the grievance to be addressed the complainant chose to resign.
In considering the reasonableness test I note the case the case of Healy v Credit Card Systems Ireland Limited UD1448/2003 in relation to the Burden of Proof. Having regard to this the complainant must prove that as well as the actions of the employer being unreasonable, the actions of the complainant in resigning must also be reasonable. The respondent in that case stated that the actions of the complainant in resigning after her claimed contractual entitlements had been provided to her was not reasonable.
The complainant at the hearing acknowledged that the respondent had dealt with previous grievances and had resolved some of the issues raised by him, but he stated that some of the issues raised in his most recent grievance had been raised previously by him and had not been dealt with to his satisfaction. The respondent at the hearing stated that many of the complainants’ issues had been resolved by the time he decided to resign.
Having given this matter a great deal of consideration and while noting that the complainant in this case did appear to have genuine grievances and cause for concern however I also note that he resigned his employment at a point in time when his grievance was being investigated and I also note that previous issues raised by him had been resolved via the grievance procedure.
In all of the circumstances of this complaint, I am satisfied that the complainant has not established that the respondents behaviour was such that it amounted to a significant breach going to the root of the contract of employment, or which indicated that the respondent no longer intended to be bound by one or more of the essential terms of the contract such that the complainant was entitled to treat himself as discharged from any other performance. I am also satisfied that the complainant has failed to establish that the respondents conduct was so unreasonable that he was justified in leaving his employment. In addition, I find that the complainant did not act reasonably in resigning his employment at a point in time where the respondent employer was engaged in the grievance process and where a grievance meeting which had been postponed at the complainant’s request was due to take place in the coming days.
I also note that the complainant advised the respondent that he had an interview for another job three days after handing in his resignation.
Accordingly, I conclude that the complainant has failed to discharge the burden of proof and that his claim for Constructive Unfair Dismissal cannot succeed and therefore is not well founded.
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 conclude that the complainant has failed to discharge the burden of proof and that this claim for Constructive Unfair Dismissal is not well founded.
Dated: 28th January 2020
Workplace Relations Commission Adjudication Officer: Orla Jones