ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048836

Parties: 

Complaint:

Date of Adjudication Hearing:  02/10/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint of constructive unfair dismissal was referred under Section 8 of the Unfair Dismissals Acts 1977-2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 14th November 2023.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  Written submissions and supporting documentation was received on behalf of the Complainant.  There was no engagement from the Respondent.  This matter was heard remotely on 2nd October 2024.  The Complainant was in attendance but there was no attendance on behalf of the Respondent.  I confirmed that a hearing notification dated 19th August 2024 had been sent to the Respondent at its registered office address and it was trading normally.  Concierge was unable to get through to the named Director/Owner by phone.  I proceeded to hear the Complainant’s evidence on the basis that the hearing could be reconvened if the Respondent subsequently presented with a reasonable explanation.  The hearing was held in public and evidence was taken under oath.  As the Complainant was self-represented, I outlined the law and burden of proof in relation to complaints of constructive dismissal. 

During the hearing, the Complainant had referred to the Director/Owner as being unwell for years.  Out of an abundance of caution, the WRC undertook follow-up enquiries.  A Representative confirmed that as the Director/Owner had been undergoing palliative care, he had been unable to attend the hearing or defend this complaint and had subsequently passed away.  This was conveyed to the Complainant who confirmed that he still wished to pursue this complaint and obtain a decision notwithstanding same.  As this complaint refers to sensitive medical and personal information, I direct that no details are published that might identify the Parties in accordance with Section 8(1B) of the Acts as constituting special circumstances.

Background:

The Complainant referred a complaint of constructive unfair dismissal to the WRC contending that he had been forced to resign from his employment with the Respondent owing to his poor working conditions.  At the material time, he earned €1,088 gross per month and by way of remedy, primarily sought vindication and an apology.  There was no attendance on behalf of the Respondent for the reasons outlined above.

Summary of Complainant’s Case:

The Complainant gave evidence outlining his history of employment with the Respondent from 1st August 2013 and the circumstances giving rise to his resignation on 18th October 2023.  The Respondent was a small signage company operated by a Director/Owner with two employees.  These were the brother of the Director/Owner who undertook the manual work required and the Complainant as a part-time Office Manager.  The Complainant worked 16 hours a week and earned €16 per hour or €1,088 gross per month. 

The Complainant confirmed that he had never received a written statement of the terms of his employment or contract including grievance procedures.  He contended that for the ten-year period of his employment, he had been required to work upstairs in a lock-up garage without windows and doors and as he would have to lock himself in, it was a ‘death-trap’.  In particular, he alleged that it did not have a fire extinguisher or alarm in the event of fire.  It had no fire exit or emergency route.  It had no windows or ventilation.  It did not have proper heating or air conditioning.  Furthermore, he had been exposed to hazardous materials and vehicles were stored below.  He was also required to work on a computer with outdated Windows 7 software which would take up to half an hour to load.  The Complainant played video footage showing his workplace.  He also submitted a statement from a witness (who was unable to attend) to corroborate his complaints about the workplace.  He is a Computer Technician and his statement confirmed the outdated computer software and also extended to offering an opinion in relation to the unsatisfactory workplace conditions based upon his attendance there as follows: “My first impression of this workplace was that there was no fire exit or fire emergency lighting.  Also, access to the office was through aluminium shutters with no means to escape from the upstairs office.  The office did not have any natural light coming through as there were no windows in walls or ceiling.  I also noticed that toxic waste was stored within the confines of the building with highly inflammable and hazardous materials exposed to inhalation by staff.  There was welding and spray painting of cars and vans at times.”  The Complainant felt that he was giving everything to his job and felt very unappreciated.  Over time, he had become very disillusioned and began to feel stressed and unwell.  He sought less hours for the same pay and/or voluntary redundancy.  However, the Director/Owner never reverted in relation to this request.

Although he was in regular email contact with the Owner/Director, the Complainant could not recall whether he had written to him about these conditions but was certain that he had raised his complaints about the workplace verbally.  He had never considered requesting to work from home as this would have been impractical.  He said that he had threatened to leave owing to his working conditions five years previously, but the Owner/Director had talked him around and undertook to address the issues but never had.  The Complainant had never sought advice or complained to any third parties or regulatory bodies.  With the benefit of hindsight, the Complainant should not have tolerated this workplace situation for so long.  When nothing was done to remedy these matters, the Complainant felt forced to resign and on 18th October 2023, he gave the Owner/Director two weeks’ notice and emailed him with his reasons as follows:

“I’m leaving my position for the following reasons:-

• 1) No Fire Exit in the Buidling. You were told about this many times and you promised to do something 5 years ago but nothing has happened to date.
• 2) Windows 7 is over 15 years and is not fit for purpose. Again you’ve been aware of this for many years but refused to do anything.
• 3) I was looking to do 3 mornings instead of 4 with same pay i.e.€16 to €21.

I’m seeking voluntary redundancy which is at your discretion, but I’ve been advised that if this is not forthcoming, I will seek and get Constructive Dismissal.  My notice will be up on Tues 31st and I don’t want any more dealings with you except a response to this email.”

The Complainant had also submitted an online redundancy calculator calculation of the redundancy he would be entitled to in the event of being made redundant based upon his service to date, being €5,509.12.

Overall, the Complainant had felt forced to resign in circumstances where the Respondent had not honoured its legal obligations to provide him with a safe place of work despite being aware of the ongoing health and safety issues.  He primarily wanted acknowledgement of his poor working conditions and compensation was not his motivation.  He wanted closure and would accept the outcome.  He confirmed that following his resignation, he had been pursuing a hobby as a business interest which was going well.  He had not sought alternative employment and had no financial loss within the meaning of the Act. 

Summary of Respondent’s Case:

The Respondent did not attend at either hearing to proffer any evidence in rebuttal of this complaint.

Findings and Conclusions:

For a successful complaint of constructive dismissal referred to the WRC under Section 8 of the Unfair Dismissals Act 1977, the Complainant must satisfy the definition in Section 1 which provides: “dismissal, in relation to an employee means- (b) 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,…”  This statutory definition is mirrored in the classic formulation of the ‘contract’ and ‘reasonableness’ tests used to determine constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] IRLR 27.  The tests are interchangeable and satisfaction of one or both tests will suffice.  The ‘contract test’ provides: “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.”  The reasonableness test requires an assessment of 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.”  In Berber -v- Dunnes Stores [2009] E.L.R. 61, a constructive dismissal case, the Supreme Court held that in determining whether there has been a breach of the implied term of mutual trust and confidence in an employment contract: “1. The test is objective.  2. The test requires that the conduct of both the employer and the employee be considered.  3. The conduct of the parties as a whole and the cumulative effect must be looked at.  4. 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 in order to determine if it is such that the employee cannot be expected to put up with it.” 

Unlike the position in relation to complaints of unfair dismissal provided for by Section 6 of the Unfair Dismissals Act 1977, the definition of constructive dismissal provided by Section 1 firmly places the burden of proof on the employee to show that termination of the employment contract was justified.  The caselaw also overwhelmingly supports the position that an employee must have firstly exhausted all alternative avenues before terminating the contract e.g. Conway -v- Ulster Bank Limited UD 474/1981.  However, there are situations whereby employees have been found to be justified in resigning with immediate effect e.g. where there has been a fundamental breach of contract or the employee has not been provided with any grievance procedures and/or grievances have not been investigated in a proper or timely manner.  I must apply the law to the factual matrix herein to determine on the balance of probabilities whether the Respondent has behaved in such a way that amounts to a repudiation of the employment contract. 

Applying the contract test to the undisputed factual matrix, I am satisfied that the Respondent 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 such that the Complainantwas entitled to consider himself constructively dismissed.  It is a fundamental term of any employment contract that an employer provides an employee with a safe place of work, meeting the requisite statutory health, safety and welfare at work legal requirements.  Even without the benefit of expert evidence, I am satisfied that the Complainant’s working conditions fell far short of this requirement based upon the Complainant’s evidence which I found to be wholly credible and video footage provided.  The fact that the Complainant had tolerated these working conditions for a lengthy period of time does not exonerate the Respondent or alter that position.  Ideally, the Complainant would have put his complaints in writing to the Director/Owner before making a decision to resign.  However, given the history to date and the Director/Owner’s unfortunate personal circumstances, the situation was very unlikely to change.  It is further noted that he had not been provided with any grievance procedures, and as such, had no means by which he could formally complain.  Having so found, it is unnecessary to consider the reasonableness test. 

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to a complaint of unfair dismissal in accordance with the relevant redress provisions.  For the aforesaid reasons, I find that the Complainant was unfairly constructively dismissed by the Respondent.  Once a complaint has been declared well-founded, Section 7(1) sets out the various forms of available redress including reinstatement, re-engagement and financial compensation as the Adjudication Officer “as the case may be, considers appropriate having regard to all the circumstances.”  Section 7(1)(c) provides for compensation of up to 104 weeks’ remuneration in respect of the employment from which an employee was unfairly dismissed for financial loss attributable to the dismissal and up to 4 weeks remuneration if no financial loss was incurred.  Given the particular circumstances and fact that the Director/Owner was too unwell to defend this complaint and subsequently passed away and noting that the primary purpose in pursuing this complaint was vindication and no financial loss was incurred, I do not propose making any award of compensation.

Dated:   17-04-25

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Sections 1, 7 and 8 of the Unfair Dismissals Acts 1977-2015 – Complaint of Constructive Unfair Dismissal – Contact Test - Failure to provide a safe place of work or grievance procedures to an employee