ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038253
Parties:
| Complainant | Respondent |
Parties | Colm Daly | Callinan Coaches Callinan Coaches |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives |
| Peninsula |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00049667-001 | 11/04/2022 |
Date of Adjudication Hearing: 18/11/22 & 24/02/2023
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
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.
The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
Parties in attendance were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that this hearing before the Workplace Relations Commission would be held in public and that this decision would not be anonymised and there was no objection to same. Parties were advised also that evidence given would be given under oath or affirmation. The complainant gave evidence under oath and Mr Frank Monaghan Operations Supervisor and Ms Michelle Callinan Head of Operations gave evidence under affirmation.
Background:
The complainant submitted that he was left with no alternative but to resign his position owing to the failures of the respondent in dealing with his complaints. The respondent denied the complaint.
There was reference during the hearing to many emails and communication between the parties and, whilst I will not be referring to every communication, incident or event I have taken into account all the submissions and evidence made to me in the course of my investigation at the hearing. |
Summary of Complainant’s Case:
The complainant gave evidence that on 2/12/21 he sent an email to the Operations Supervisor Mr Monaghan saying that he had been advised that there was a rumour circulating that the complainant had spat on another employee’s vehicle. The complainant told Mr Monaghan that he was upset that this rumour was going around and got no reply and emailed again on 9/12/21. On 10/12/21 the complainant advised the respondent that his own vehicle had been spat on and again on 19/1/22. The complainant got a reply on 21/1/22 and was told by Mr Monaghan that the respondent would not be proceeding any further with the matter. On 21/01/22 the complainant told Mr Monaghan that he wanted his name cleared but Mr Monaghan did nothing to stop the gossip. The complainant followed up again and said he was not happy and had heard nothing. The complainant said that a meeting had been scheduled which the complainant attended but as he did not expect Ms Callinan to be taking notes at the meeting, he left quickly after he arrived and went back to work. He said he left the meeting at 14:05 and hung around till 15:00 and just sat on the bus during that time. When the complainant handed in his notice on 4/3/22 the respondent accepted the notice and the complainant said that he felt he was bullied and harassed and was getting the middle finger from other drivers when he would pass them on the road. A response to his grievance was issued on11/3/22.
Under cross examination the complainant said that he did not believe that the accusations were dealt with and that it took 8 weeks for his concerns to be taken seriously and that no witness statements were taken and that he was ignored. The complainant believed that it was not dealt with appropriately. He said that the outcome of his grievance was issued on 11/3/22 and denied that he ever attended any meeting of 25/2/22 and denied he ever said anything that was alleged to be contained within the respondent’s minutes of a meeting. The complainant said that he was not going to stay at the meeting of 25/2/22 and there was no meeting and that nobody got back to him. It was only when the complainant resigned that the respondent began to act. The complainant said that one of the employees retracted his statement and although he had told the complainant one thing this employee then changed his story. The complainant said that he thought that he was going to be attending a meeting to give a statement and did not expect it to be as formal as it was and was not prepared for that meeting and that maybe if he had received more notice he would have attended. The complainant confirmed that there was no formal complaint against the complainant with regards to spitting. The complainant gave evidence that he had secured employment since his resignation and had not incurred any loss.
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Summary of Respondent’s Case:
The respondent operates a coach service and the complainant was employed as a Driver with the Respondent. The Respondent denies the complaints.
It was submitted that the complainant was employed as a Driver from 15/08/2019 and on the 22/04/21 a WhatsApp message was sent to all staff informing them that a member of staff had returned to their vehicle, and it has been spat on. Employees were asked if anyone had noticed any suspicious behaviour and the complainant responded that his vehicle had also been spat on that morning. On 2/12/2021 the complainant emailed Mr Monaghan stating that a colleague, had asked him if he was the one who spat on the vehicle. The complainant stated in the email that there was a rumour going around that he was the one who spat on the vehicle, and he was upset by the rumour. The complainant was asked to provide the names of the drivers who spoke to him about this to allow for an investigation. On 19/1/22 the complainant advised that his original complaint in December was a grievance and that he was seeking an outcome. The complainant was advised that there had not been any allegations against the complainant about spitting and that respondent would not be proceeding any further with the grievance. On 24/1/22 the complainant advised Ms Callinan that he was unhappy with how the process had been handled. Ms Callinan was out on leave and when she returned she contacted the complainant on 2/2/22 regarding his grievance and reminded him that her out of office email would have been on. She asked the complainant for additional information. On 4/02/22 the respondent advised all staff about parking their buses in a manner that would cause an obstruction. On 5/2/22 the complainant made further complaints including that Mr Monaghan gave witnesses statements to sign in connection with the spitting incident. The complainant further complained that an employee took a photo of the complainant while parked and that other drivers’ attitude to him had gotten worse including “dirty looks” and “hand gestures”. Ms Callinan asked the complainant for specific dates and times to allow her to have these matters investigated.
On 25/2/22 a meeting was arranged for the complainant to meet with Ms Callinan in person to discuss some of his complaints including spitting and rude gestures. On 4/3/22 the complainant resigned from his employment and gave two weeks of notice finishing up on 18/03/2022. The complainant said in the letter that his reasons for leaving were because of the harassment and the rumours that he alleged were circulating about him. The complainant worked during the notice period.
The respondent continued to investigate this matter and spoke with employees and the Respondent answered each issue in turn. On 11/3/22 the respondent issued an outcome to the complainant and concluded that they could not find sufficient grounds relating to the complainant’s grievance to necessitate further disciplinary action against any of those accused. The Respondent informed the complainant of his right to appeal. On this same date the Respondent accepted the complainant’s resignation and thanked him for his time with the company. On 16/3/22 the complainant advised Ms Callinan that he felt she had failed to investigate the allegations and was more concerned about proving that nothing was said about him. The complainant said that he did not know what to appeal as he alleged that had not met with anyone from the company and that a conclusion was sent with no investigation. The complainant stated he would be finishing his employment without this being resolved and the Respondent did not receive any instruction to initiate an appeal. Case law cited included Kenouche v Four Star Pizza UD 962/2008, Berber v Dunnes Stores Ltd [2009] IESC 10, Ruffley v Board of Management of St Annes School [2017] IESC33, McCormack v Dunnes Stores UD 1421/2008, Aryzta Bakeries -v- Cacs (UDD1812), An Employee v Employer (UD720/2006), Pungor v MBCC Foods Ltd. (UD584/25), Donnegan Vs Co Limerick VEC UD828/2011, Ian Flaherty v College Freight Ltd. [2009] 6 JIEC, Coad v Eurobase (UD1138/2013).
The evidence of Mr Monaghan was that he received complaints from the complainant and replied to them. It took some time to get back to the complainant as he had to talk to some of those whom the complainant mentioned. He said that he drove behind the complainant to see if employees were making rude gestures to the complainant but did not witness anything. Mr Monaghan said that the records showed that the complainant ceased driving the bus at 13:57 on 25/2/22 and commenced again at 16:23.
Under cross examination, Mr Monaghan said he did not believe he needed to get an additional statement from the complainant as he had the complainant’s emails and that he did not believe he needed to make contact with the complainant to get information orally as he had responded by email. He said that he did not feel the need to get statements from all the people mentioned by the complainant.
The evidence of Ms Callinan was that on 4/1/22, 28/1/22 and 31/1/22 she received emails from the complainant, but she was on holidays and that she sent an email on 2/2/22 acknowledging the complainant’s emails. Ms Callinan said she had a meeting on 25/2/22 with the complainant and that another employee was in attendance taking notes at the meeting. Ms Callinan said she was certain that the complainant attended and that the meeting started at 14:05 and ended around 16:17 and that the complainant sat in a chair behind the door. She said that the purpose of the meeting was to follow up and that she told the complainant the purpose of the meeting was to get through the issues. The complainant told her there were rumours and that Ms Callinan told him it was denied there were rumours. The complainant resigned on 4/3/22 and Ms Callinan told him that operations would need to know of his resignation. She said he was offered water at the meeting of 25/2/22 and she noticed that he did not seem very comfortable at the meeting but confirmed that the meeting did take place.
The complainant did not cross examine Ms Callinan. In answer to questions from the adjudicator Ms Callinan said that she did not advise employees of the bullying and harassment policy. She said at the meeting on 25/2/22 that she started from the beginning with the story of the spitting. She said she started from scratch as the complainant was unhappy as he did not agree with what had happened. Ms Callinan confirmed that there had been no previous review of tachographs but that they tallied with the time the meeting of 25/2/22 started and ended. |
Findings and Conclusions:
The complaint’s complaint is that he was constructively dismissed, and in reaching my conclusion I have carefully evaluated the evidence adduced in the course of the hearing and taken full account of written and oral submission made by the parties.
Section 1 of the Unfair Dismissal Act sets out that constructive dismissal 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 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”.
Circumstances in which a resignation may be considered as constructive dismissal are 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 resign his/her position, often referred to as the “contract test”. The employer is in effect, “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 and therefore, the employee is entitled to treat himself as discharged from any further performance as held in Western Excavating (ECC) Ltd v Sharp[1978] IRL 332.
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 seeks whether the employer conducted their 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/she is justified in leaving.
In the Supreme Court judgement of Berber it was determined, “The conduct of the employer complained of, must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly to determine if it is such that the employee cannot be expected to put up with it.”
The burden of proof rests with the employee to show that the resignation was justified in all the circumstances.
In the instant case, the complainant submits that because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for the complainant, to terminate the contract of employment. It is necessary, therefore, to examine the conduct of the parties. In normal circumstances a complainant who seeks to invoke the reasonableness test, must also act reasonably by providing the employer with an opportunity to address any grievance they may have. It must be demonstrated that the employee pursued their grievance through the procedures laid down in the contract of employment, before taking the step to resign which has been set out in Conway v Ulster Bank LimitedUDA474/1981.
The complainant submits in this instant case that he felt he was left with no alternative but to leave his job because of gossip that went around the respondent’s organisation that he had spat on someone’s vehicle. He submitted that the respondent failed to conduct a proper investigation into his grievance regarding these allegations. The respondent denies the allegations and submits that they conducted an appropriate investigation.
It would appear that the complainant did request on a number of occasions for an investigation into the rumours. I note that the respondent submits they did investigate the matter but that the employees referred to by the complainant were dismissive of the complainant’s claims. It would appear that the respondent’s investigation was conducted in a rather informal, haphazard manner and this was not helped by the respondent’s delays, which on occasion were avoidable, in responding to the complainant’s emails.
There is significant conflict in evidence between Ms Callinan and the complainant regarding the meeting which is alleged to have taken place on 25/2/22. The complainant’s evidence under oath/affirmation was that he arrived but did not like that notes were being taken and left. Ms Callinan’s evidence under oath/affirmation was that the complainant stayed for this meeting, participated and that minutes were taken, and she provided a copy of such handwritten notes for the hearing. Both witnesses were reminded that they were giving evidence under oath or affirmation, and both reaffirmed that their version of events was accurate.
Having considered the evidence of the parties with regard to this I find that it is more credible that the meeting of 25/2/22 took place. I make this decision on the basis of the notes provided, the detail of the evidence given by Ms Callinan whereas the complainant’s evidence appeared vague at times, the evidence provided of the bus tachograph which showed the time that the complainant’s bus arrived and departed and which fitted in with the timelines provided by Ms Callinan and also taking note that the burden of proof rests with the employee to show that the resignation was justified in all the circumstances. The complainant later resigned his position on 4/3/22 and I note that he advised that he was leaving because of “the harassment and false accusations” and that he would stay on till 18/3/22. While the letter advises that the reason for leaving is due to the harassment and false accusations, it is clear that the complainant did not feel forced to leave immediately. While the respondent conducted the investigation poorly and did not appear to give it the full consideration that one might expect for matters of this nature; I find when considering the whole of the evidence that the complainant has not met the burden of proof required and that his complaint of constructive dismissal must fail. Taking into consideration all the aforementioned circumstances I find that the complainant was not unfairly dismissed, and I dismiss the complaint. |
Decision:
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.
Taking into consideration all the aforementioned circumstances I find that the complainant was not unfairly dismissed, and I dismiss the complaint. |
Dated: 11th October 2023
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Constructive dismissal, |