Complainant

Respondent

Parties

Verginica Draghici

Brinks Cash Services (Ireland) Limited

Representatives

Represented Herself 

Represented by Management

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067116-001

03/11/2024

The complainant worked for the respondent as a cash processor on the day shift.  She commenced in her role on August 15th 2022.  She worked 40 hours per week and her gross weekly pay was €536.80.  On May 30th 2024, she gave one week’s notice of her intention to resign and she left on June 7th.  At the hearing on June 4th 2025, she said that she started a new job as a clerical officer in the public service on June 10th 2024. 

The complainant claims that she had to leave her job because of the conduct of her employer, and it is her case therefore, that the termination of her employment was a constructive dismissal.  The company’s position is that she was treated fairly and that the issues she raised were considered in line with their grievance procedure. 

In her evidence, the complainant outlined her reasons for leaving her job.  I took notes of these reasons and the response of the HR director, which I have summarised as follows:

1.       The complainant objected to the “closed shop” arrangement with SIPTU. 

The company recognises SIPTU for collective bargaining and staff are required to join and remain members of SIPTU.

2.       The complainant complained about her Social Welfare Illness Benefit was treated on her payslip.

At the hearing, she said that she was satisfied with the explanation she has received about this issue.

3.       The complainant’s husband works for the respondent and he was at work on November 22nd 2022, when the complainant had an accident on her scooter as she was travelling to work.  During working hours, employees are not permitted to have mobile phones and the complainant wasn’t able to contact her husband directly.  She had to phone the respondent’s national control centre.  She complained that supervisors and managers are permitted to have phones at work.

It is the company’s policy that only managers and supervisors are permitted to carry phones in the cash centre.  Staff are not permitted to have their phones due to the risk of tiger kidnapping and because photographs of the centre are not allowed.  Visitors may carry phones, but they are not allowed to take pictures.

4.       When she was out of work as a result of this accident, the complainant’s absence was treated as absence due to sickness when she was absent because of an accident on her scooter.  She claims that there is no provision in her contract of employment not to pay her wages when she was absent due to an accident.

The respondent’s position is that the complainant was not entitled to sick pay because her accident occurred in November 2022, when she had been working for the company for three months.  Employees are required to have 12 months’ service to qualify for sick pay.

5.       There is a biometric scanner at the entrance of the workplace and the complainant said that she didn’t agree to its use.

In response, the HR director explained that there is a turnstile in operation at the company’s National Control Centre which is a verified access control system where employees are required to scan their ID badge.  The National Control Centre verifies the swipe against the camera so that they can verify the identity of the staff member.   

6.       On November 13th 2023, the government issued a red weather warning.  The complainant complained that she wasn’t paid when she didn’t attend work.

The respondent’s position is that employees were required to come to work when the weather warning was downgraded from red.  The complainant did not attend work and therefore, was not paid.

7.       The complainant complained about the fact that, when she was absent due to an injury at work on November 15th 2023, she was paid sick pay instead of occupational injury pay.

The HR director explained that the complainant’s absence was wrongly coded as sickness and not occupational injury which meant that the first 26 hours of absence wasn’t paid.  This was resolved in February 2024.

8.       In September 2023, the complainant wanted to go on holidays immediately after her absence due to illness and this wasn’t permitted.

The HR director said that the complainant was out sick and had not returned to work and this is the reason she was not permitted to take holidays.

9.       The complainant complained about the fact that, under the respondent’s Cycle to Work Policy, she was required to repay the cost of her bicycle over a period of 12 weeks instead of one year.

At the hearing, the HR director explained that this policy was agreed following negotiations with SIPTU and the 12-week payment period is due to the high turnover of employees in the company. 

10.   The complainant raised the fact that employees are required to work a “back week.”  She claims that she wasn’t paid the back week when her employment ended on June 7th 2024.

I understand from the respondent’s submission wages are paid fortnightly and always one week behind.  I understand that the complainant was paid two weeks’ wages on June 9th, for work done up to June 2nd and that she received her final week’s wages and her outstanding holiday pay on June 25th.

11.   The complainant complained about the temperature in the unit where she worked, which she claimed was too cold.  She said that there was a fan over her head which blew cold air onto her and made her feel sick.

The HR director informed me that, arising from the complainant’s concerns,  an engineer from Qualtec attended the site to review the air conditioning system.  A copy of his report of March 5th 2024 was included in the respondent’s submission for the hearing.   The report finds that the air conditioning system in the cash centre met the minimum requirements of the Health and Safety Authority’s regulations on indoor workplace temperature.  The temperature is set at 21 degrees.  There is a health and safety official employed in the cash centre where the complainant worked and, when she complained about being cold, the complainant was offered additional clothing.

12.   On March 22nd 2024, the complainant was required to attend a meeting in accordance with the absence management process, which she claims was the respondent “fabricating a file” to engineer her dismissal.

In response to this allegation, the HR director said that the absence management procedure is triggered when an employee has a certain number of days’ absence.  This was not a disciplinary meeting but a discussion about the complainant’s absences.  She was accompanied at the meeting by a SIPTU representative and the days that she was absent due to the workplace injury were not included in the calculation of the days of absence.  The complainant made a complaint about this issue and an investigation was conducted by the head of operations.  In a report dated April 11th 2024, a copy of which was included in the respondent’s submission, he concluded that the complainant misunderstood the purpose of the meeting, thinking that it was a disciplinary investigation.  The managers who conducted the meeting did not deceive the complainant, but followed the absence management procedure.

13.   In April 2024, the complainant was verbally harassed by a manager who accused her of messing up cash.  She feels that this conduct was abusive.  She complains also that she had to work with this manager for one week before he left the company.

An investigation into this allegation was also conducted by the operations manager.  A copy of his report was included in the respondent’s submission.  On April 30th 2024, he wrote to the complainant and confirmed his finding that the conduct of the manager was unacceptable.  The complainant was encouraged to get support from the company’s employee assistance service.

14.   When she had to take a break and go outside, the complainant said that her manager deducted 15 minutes from her break.  She claims that employees who took smoking breaks or who had small children were not treated in this way.  The complainant claims that, when she complained to SIPTU about this, they did nothing.

The HR department has no record of this complaint.

15.   Following an absence from work, the complainant said that, in a place where other employees could hear, her supervisor asked her about the reason why she was absent.

The respondent’s position is that managers and supervisors conduct return to work interviews with employees who have been absent and a return to work form is filled out.

16.   The complainant claims that that her supervisor was verbally aggressive about a password to activate her computer.

The HR director informed me that the head of operations spoke with the supervisor about this matter and she disputed the allegation. 

17.   When she left her safety shoes on top of the lockers in the changing room, the cleaners threw them in the bin.  All the shoes that were not in lockers were disposed of in this way.  The complainant said that she was provided with a locker only after she was working with the company for one year.

The HR director said that no grievance was raised about this issue until the complainant was working for the company for one year.  She said that there are lockers available for staff and visitors and that there was never any issue about giving the complainant a locker.  The cleaners threw out the safety shoes that were not in lockers and the complainant was provided with replacement shoes.

18.   The complainant complained that the company changed its policy for searching employees when they leave the workplace.  After one year of being searched by a female, she was subject to a search by a man and sometimes a woman.

A copy of the respondent’s search policy was included in their documents for the hearing.  It is a condition of employment that staff must consent to be searched.  A non-contact visual search is conducted under a camera.  The security search service is provided by an external company and it is not always possible to have a woman or a man on duty. 

19.   There was often a queue at the clock to clock in to work and the complainant claimed that this meant that she had to arrive early to work to avoid being late.  She complained that she had to change into her uniform in her own time.

The HR director said that it is the policy in the company that employees come to work in uniform or that they change for work before their shift begins.  Employees are allowed 15 minutes grace before being considered as late for work.  She said that this policy is agreed with SIPTU. 

20.   The complainant said that she suspects that there are “spy” cameras in the toilets.

The HR director informed me that there are absolutely no cameras in the bathroom areas.  When the complainant reported this issue, the Gardaí conducted a search of the toilets and removed the ceiling tiles.  They confirmed that there were no cameras in the toilets.

21.   The complainant claims that a document that refers to the “inappropriate use of company resources” is an accusation of theft.

At the hearing, the HR director told me that the complainant has never been accused of theft.  In their submission, the respondent included a copy of a staff notice with the title, “Inappropriate Use of Company Resources.”  The examples given are, taking excessive breaks, taking supplies to use at home, and using company vehicles for personal errands.

22.   The complainant said that she had no scissors or stapler and there was a shortage of protective gloves.  She said that the respondent didn’t explain the health and safety aspects of using computer screens.  She also said that the wheels of the cages used to move notes are defective, which makes handling of the cages difficult.

The HR director informed me that a risk assessment is carried out on all equipment and broken trollies are not used but are put aside.  Staff are trained in the risk assessment of equipment.  The complainant made a complaint to the Health and Safety Authority about these issues and an official concluded that they were matters that should be resolved in the workplace. 

23.   Every Friday, the fire alarm goes off and it is very loud.  On St Patrick’s Day 2023, it rang all day.

The HR director informed me that the company takes health and safety very seriously and that a fire drill is conducted every Friday.  She said that she wasn’t informed that the fire alarm rang all day on St Patrick’s day in 2023.

24.   The complainant claims that her data was shared with another company, G4S.

The HR director informed me that the respondent bought G4S in 2020 and that Brinks and G4S are now merged into one company.

25.   The complainant said that her date of termination on her account on the website of the Revenue Commissioners is June 3rd 2024 and this is incorrect, because she finished work on June 7th 2024.

At the hearing, the HR director informed me that, in error, the payroll section put June 3rd down as the complainant’s last day at work.  This has been resolved and the respondent’s submission included a copy of the correct Revenue record.

Constructive Dismissal

The definition of dismissal at s.1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

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 without giving prior notice of the termination to the employer…”

I have considered the conduct of the respondent in relation to this former employee.  During the 22 months of her employment, she raised several grievances which were investigated.  I note that a grievance she raised about the conduct of a manager who was aggressive towards her on one occasion was upheld.  She made other complaints about health and safety, payroll and about the application of the company’s absence management policy and these were investigated and resolved, although not always to her satisfaction.  Taking account of these facts, the issue I must consider is, has the complainant shown that it was reasonable, or was she was entitled to terminate her employment and to claim that she was constructively dismissed?

The Burden of Proof in Constructive Dismissal Cases

An employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.”  As a third component of this burden of proof, an employee who decides to resign and who argues that their resignation was because of the conduct of their employer, is generally expected to try to have their grievances addressed, by utilising their employer’s grievance procedures. 

The complainant made no allegation regarding a breach of her contract by her former employer and therefore, the issues for consideration are,

1.       Was the conduct of the employer so unreasonable that the complainant had to resign?

2.       Did the complainant act reasonably by using her employer’s grievance procedures to address her concerns?

In the decision of the Court of Appeal in the United Kingdom in Western Excavating v Sharp[1], the reasonableness of the employer’s conduct was examined to determine if,

“…the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with any longer…If so, the employee is justified in leaving.”

From the complainant’s evidence, I was left in no doubt that she was unhappy in her job.  Clearly, she didn’t like the stringent security regulations that applied to her role, some of which are unique to a cash-handling business.  I accept that there were two payroll mistakes, which were annoying and inconvenient.  The complainant also gave evidence that she was uncomfortable with the temperature in the workplace and she had concerns about equipment.  These issues were investigated and the respondent was found to be compliant with health and safety regulations.

While the problems experienced by the complainant may have been frustrating and annoying, they do not meet the standard of unacceptable behaviour that justifies resignation on the grounds of constructive dismissal.  When the complainant raised her concerns with management, she was taken seriously.  Third parties such as the air conditioning engineer, the Health and Safety Authority and the Gardaí were called in to investigate her grievances.  When she raised issues about payroll and sick pay, they were resolved.  Having considered her evidence and the response of her former employer, I find that the complainant has not shown that the respondent treated her in an unacceptable or unreasonable manner or that she couldn’t tolerate how she was treated for a minute longer.

Conclusion

The complainant didn’t leave her job on the spur of the moment, but in a planned and organised manner.  She gave notice on May 30th 2024 that she intended to leave on Friday, June 7th.  She worked her notice and she started in a new job on in the public service on Monday, June 10th.  This is not the behaviour of someone who feels that they are being treated so unacceptably that they have to leave.

Having listened to the complainant’s evidence at the hearing, I find that she has not demonstrated that the conduct of her employer was so unreasonable that she had to resign.  It is my view that, having exercised her rights in accordance with the company’s grievance procedures, she could be confident of getting a listening ear from her employer.  I acknowledge that she did not like the responses to her grievances, but the test for constructive dismissal is more onerous than mere unhappiness.  The complainant was entitled to leave her job; however, she is not entitled to claim that the reason was because of how she was treated by her employer.

I have concluded that the complainant has not shown that her employer breached a fundamental term of her contract of employment, or behaved so unreasonably, that she had to resign from her job.  As a result of this finding, I have decided that her complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal, failure to use grievance procedures