FULL RECOMMENDATION
PARTIES : MCGUIRE HAULAGE LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00026366, CA-00034799-001 BACKGROUND: 2.The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 23 August 2021 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 24 February 2022. The following is the Determination of the Court: DETERMINATION: Background The Complainant commenced employment with the Respondent on the 21/10/2015 and resigned on the 12thFebruary 2020.The Complainant submits that he had no option but to resign and is therefore claiming constructive dismissal. The Respondent denies the Complainant was dismissed. Summary of Complainant’s case and evidence The Complainant’s Union representative submitted that the Complainant worked without incident up until July 2019. A difference of opinion occurred between the Complainant and the site operator where the Complainant worked in respect of new procedures that were introduced. These procedures required the Complainant to place a seal on the container and to record same on a specific sheet. The Complainant’s role was shunting trailers around the client’s yard. The Complainant felt that it was not appropriate for him to do this job and that it was contrary to FSAI regulations. The Union submitted that the Complainant had sought a meeting to discuss his concerns, but no meeting had been arranged so he did not operate the new system. It only came to light that he was not operating the new system in and around the 28thJuly 2019. When the Complainant attended for work, he discovered that his admittance card was de-activated, and he could not access the site. The Respondent offered the Complainant alternative work in Baldonnell in Dublin, but this was problematic for the Complainant because of the commute, and he had no way of getting there. He requested that the Respondent provide him with company transport, but they declined. There was also an issue in respect of safe pass training and whether he had the skillset for the job they were offering. The Complainant’s preference was for a job closer to home. The Complainant in his evidence to the Court stated that he had a difficulty with putting on the seals and completing the log and while he did put the seals on the containers, he did not complete the log. It was his evidence that he believed the procedure they introduced was flawed. He spoke to a Mr Roche yard manager and shop steward who said he would try and arrange a meeting with management in respect of same. The Complainant stated that two weeks after his site ban the client company changed the procedure in respect of the seals and the logs. When he reported for work on the 29thJuly 2019 and could not gain access to the site he made a few phone calls. He spoke to the operations manager in charge of the client’s site who told him that he received the site ban because it had come to light that he had not followed the instruction about the seals and logging same. She advised him that she had Informed the Respondent about the site ban. When he contacted the Respondent, they stated that the issue in respect of him not completing the logs had come to light because his colleague had been completing the logs, but he was now on annual leave. The Complainant submitted that it was his understanding that his colleague had not completed the logs, but the colleague was not in attendance at the hearing to give evidence. The Complainant confirmed that he had informed the Respondent that he was not prepared to complete the logs not even on a temporary basis. The Complainant stated that the offer of an alternative position in Dublin was not feasible. He could not afford to travel to Dublin to work and he did not have transport as the family only had one car which his partner used. The Complainant stated that he believed there were other posts closer to home where the Respondent could have moved him to. He was aware of one place Larkins cross where there were three vacancies filled and he believed he could have been offered one of those posts. He did not accept the Respondent’s position that working in that yard would require him to access the site where the site ban was imposed. The Complainant set out his current situation in terms of employment and the efforts he had made to mitigate his loss. In response to questions from the Respondent’s representative under cross examination the Complainant accepted that he had been told there was a site ban and why the site ban was imposed. The Complainant also accepted that part of the new process was a check sheet which he chose not to fill in but that he did not formally inform the Respondent that he would not complete same. The Complainant accepted that he had taken it upon himself not to follow the procedure. The Complainant accepted that he was instructed by Mr Fitzpatrick who worked for the Respondent to read a sheet about the new procedure, sign it on the bottom and carryout the duty on the 23rdJune 2019. The Complainant confirmed that he did not lodge a grievance about having to carry out the new procedure and did not ask his Trade Union to lodge a grievance on his behalf, but he did ask Mr Fitzpatrick to arrange a meeting with the client about the duty as he felt it was not appropriate for the drivers to be doing it. In response to a question from his Representative the Complainant stated he was aware of at least one other person who had a site ban because the door opened when they were driving, and they had been allowed back on site. The Complainants representative submitted that the Respondent launched an investigation into the circumstances surrounding the site ban. The Complainant did not accept the outcome of that investigation and wanted to appeal same to an independent party. The Complainant does not dispute he did not lodge a formal grievance complaint in line with the Respondent’s processes. The Respondent moved the issue on to the disciplinary process which concluded that no further action was required. The Complainant’s representative submitted that as he had not been offered work other than the position in Dublin the Complainant felt he had not option but to resign. The Representative opened a number of cases to the Court in support of their contention that the Complainant was constructively dismissed. It was her submission that the Complainant’s contract had been breached when he was offered the position in Dublin which attracted a lower rate of pay. In terms of the reasonableness test, it was submitted that by not offering him a position closer to home the Respondent left him with no option but to resign. Finally, it was submitted that it was clear from the caselaw that the failure to lodge a grievance complaint was not necessarily fatal to his case. Summary of Respondent’s case The representative for the Respondent submitted that the Complainants complaint is not well founded. The Complainant was removed from a client’s site at the request of the client for failure to follow a procedure which he was instructed by his employer the Respondent to follow. An investigation into the site ban was carried out and it found that the fault lay with the Complainant who had failed to follow procedures laid down by the client. The Complainant was offered an alternative position in line with his existing pay and terms and conditions. The Respondent was limited in where he could offer positions to the Complainant because of the site ban. In respect of the Complainant’s submission that the post offered was on a lower rate of pay, any difference in the rate of pay arose from the fact that the Complainant worked nights prior to the site ban and the position that was available was for day work which did not attract a premium rate. The Complainant at all times was aware that he was refusing to carry out a direct instruction from his employer. The Complainant had a number of options open to him such as carrying out the work under protest, lodging a grievance, asking his union to raise it with the employer on his behalf but he chose not to exercise any of those options. If as the Complainant has stated that the procedure was not in compliance with FSAI regulations he could have made a complaint to that Authority, but he chose not to. The Respondent and the client do not accept that the process was in breach of any regulations. The net issue in this case is that the Complainant decided not to follow the procedures on site and as a result of that decision he found himself banned from the client’s site. The Respondent sought to source alternative work for the Complainant, but he declined to accept that work or even try it before refusing to accept it. At no time did the Complainant lodge a grievance in respect of the either the outcome of the investigation and / or the alternative work offered to him. The Representative for the Respondent submitted that the Complainant has not demonstrated that his contract has been breached and or that the Respondent’s behaviour was so unreasonable as to leave him with no option but to resign. The applicable law Section 1 of the Act defines constructive dismissal in the following manner “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,” Section 6(1) of the Act states “ Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”. Issues for the Court As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act. Section 1of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. InWestern Excavating (ECC) Ltd v Sharp[1978] IRL 332 it was held that to meet the “contract test” an employer must 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”as held 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 is justified in leaving. The Complainant in this case is relying on both a breach of contract and the reasonableness of the Respondent’s behaviour. Discussion The Complainant submitted that his contract was breached when he was offered a post in Dublin at a lower rate of pay. The Court was not provided with any documentation that showed that the Complainant had a contractual right not to be offered a post in Dublin. In respect of the terms and conditions of employment that were linked to the Dublin post which the Complainant submitted were less favourable that his existing terms and conditions, the submission by the Respondent that the differences, if any, were linked to the fact that the Complainant previously worked night work and the post on offer was day work was not contested by the Complainant. The Court finds that the Complainant has not established that there was a significant breach going to the root of the contract. The conduct being relied on is the Complainant’s unhappiness with the investigation that was carried out into the site ban and the failure of the Respondent to provide him with alternative employment in the local area or in an area he considered to be appropriate. In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning. In this case it is clear from the evidence of the Complainant that it was his actions in refusing to carry out an instruction that led to the site ban and not an action of the Respondent and that he was informed of that fact. Neither is it disputed that the Complainant did not invoke the grievance procedure either in respect of his dissatisfaction with the outcome of the investigation or in respect of the alternative post that he was offered. The Respondent had a grievance procedure in place and the Complainant was aware of its existence. On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle him to terminate his employment without having sought to ventilate and resolve whatever grievance that he had through the internal procedures. Determination Having found that the Complainant has not established that there was a significant breach going to the root of the contract and that the Respondent’s conduct was not unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal, the Court finds that the Complainant’s employment did not come to an end by way of dismissal. The Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.
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