Complainant

Respondent

Parties

Gareth  Mulhall

Maurice Ward & Co. Limited

Representatives

  Self-represented

Sarah O’ Rahilly – HR Consultant  

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00067183-001

05/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00067183-002

05/11/2024

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

CA-00067183-003

05/11/2024

The Complainant states that he commenced employment with the Respondent as a Driver in April 2017.

The Complainant states that he was called to a meeting with his employer on 24 October 2024; in attendance was himself, MW (Director) and BB (Country Manager). The Complainant maintains that at the meeting, he was advised by MW that “it was not a conversation” and that he was “not to talk”. The Complainant states that MW proceeded to make the following accusations;

(i) that the Complainant refused to work with a Contractor.

The Complainant states that he advised both MW and BB that he never refused to work with the Contractor but that the Contractor chose not to work with him on the given morning, due to his low immunity and the fact that he had Covid in his household.

(ii) that the Complainant refused to work two early morning starts.

The Complainant advised that being unavailable to work two early morning starts in 8 years does not class him as inflexible. The Complainant stated that he was not notified on either occasion that his unavailability was an issue and that if he had been told the Company was stuck, he would have tried to accommodate them.

(iii) that as a colleague had forgotten his passport on a trip to France, that he was responsible as a collective.

The Complainant advised the Respondent that his colleague is a grown man and is not his responsibility.

The Complainant states he was advised by MW (Director) that his income would be deducted by €200 as a result of the issues highlighted and that HR would contact him to discuss same. The Complainant states that he informed them that any deduction from his income was illegal and done without his consent. The Complainant advised that if the company proceeded with same, he would have no option but to make a complaint to the WRC.

The Complainant states that on 31 October, MW (Director) responded by email notifying him again that from now on there will be consequences (financial sanctions) for failure to carry out duties. The Complainant states that MW makes reference again to the Complainant’s colleague forgetting his passport and emphasis on team work and collective responsibility. The Complainant states that MW advised that the €200 deduction was a signal to him and his fellow team members that from now on there will be consequences if work was not carried out properly.

The Complainant states that on 1 November, he emailed MW highlighting that in the 8 years he worked with the Respondent, he had always acted professionally, never broke any items or forgot any paperwork and that MW’s reference to same in a previous email did not apply to the Complainant in its entirety. The Complainant acknowledged that MW did say HR would be in contact and he had just received an email, one week after the unlawful deduction (while also on annual leave). The Complainant states that he reiterated that his colleagues failings were not his failings and working as part of a team should not affect your wages. The Complainant advised MW that the unlawful deduction was without consultation, merit or consent and was illegal and that he did not consent to her amending his contract going forward to deduct his income as MW sees fit. The Complainant states in the email that given the manner in which he has been treated that the company has left him with no alternative but to resign.

The Complainant stated that he advised that while he liked working in the Respondent company, given the manner in which he was treated by the Respondent, he felt there was a complete breakdown in trust. The Complainant further states that given the nature of the breach of contract and the threat of further deductions going forward, he felt that he was left with no alternative but to resign with immediate effect. The Complainant states that it was not what he wanted and he made efforts to avoid same.

The Complainant states that on 4 November, he received a phone call from BB (Country Manager) advising that he needed to work his 30 days’ notice. The Complainant states that he advised BB that he was out on constructive dismissal and would not be returning until such time as the situation was resolved. On foot of this call, he sent an email to MW and BB on 4 November and advised that if the situation was remedied immediately, he would have no problem returning to work.

The Complainant states that later that day, he received a phone call from a representative in HR wherein she advised that if the grievance procedures had been breached, the company would look at returning the funds deducted. The HR representative advised that as the Complainant had given in his notice, she was of the opinion that he had resigned. The Complainant states that he advised her that it was a constructive dismissal and that he had no other alternative. The Complainant states that while the HR representative advised she would look into the Complainant’s refund and respond on 5 November, he never heard anything further from the HR representative or his employer as of the 5 November.

The Complainant stated that he got alternative work three weeks following the ending of his employment with the Respondent.

The Respondent states that the company operates a specialist art department where art such as valuable paintings, sculptures, art exhibits etc. are moved by the team. The Respondent maintains that given the delicate nature and value in terms of repair and replacement costs along with the intrinsic value of the items, this area of the business requires careful management and care along with clear protocols to ensure that these items are transported in a professional manner and that they reach their destination intact and in a timely manner, as per the clients’ exacting requirements. 

The Respondent states that there are three drivers assigned to oversee this work, including the Complainant. The Respondent states that prior to the meeting being held on the 24 October, there had been several incidents involving the Complainant (and the two other drivers) where artworks and other items had been broken and damaged. In addition, avoidable errors occurred such as not turning up with core documentation (driving licenses, passports, EHIC cards) which held up trips and caused considerable knock-on effects along with client dissatisfaction. In addition, the Respondent claims that the Complainant had refused to work with certain people or to be available for important jobs. These issues were a source of frustration, which could result in significant reputational damage, loss of revenue and loss-making jobs for the company.

The Respondent states that on 23 October 2024, MW (Former Director) emailed the  three drivers including the Complainant and requested each of them to attend a meeting with her the following day.

MW requested the Complainant attend a meeting, along with BB, Country Manager. MW separately met with the other two drivers with the same intention of discussing the protocols involved in a transfer project and they both accepted the issues were valid.  The Respondent states that the purpose of the meeting on 24 October was to outline the issues that had occurred and to discuss a plan to proactively ensure these issues did not recur. It was not MW’s intention to hold a “disciplinary” hearing rather to help the Complainant understand the issues to ensure they were minimised in the future. Incident reports were collected by the Head of Operations in relation to these matters.  The Respondent states that as an outcome to the meeting, MW informed the  Complainant that €200 was going to be deducted from his wages due to ongoing errors. 

Subsequently the Complainant contacted MW to query the reason for the deduction of €200 made to his wages. On 29 October, MW responds to the Complainant explaining that the reason for the deduction was as a result of the failure to carry out his duties as per his training which led to delays and loss of revenue.

On Wednesday 30 October 2024, the Complainant responds to MW commenting he found accusations made during the meeting to be unfounded and asked why he was liable for another employee’s failure to bring travel documents (passport). It was submitted that the Complainant  expressed concerns regarding the failure to use the company grievance procedure.

The Respondent states that on 31 October 2024, MW responds explaining that the meeting which took place on 24 October 2024 was not intended to be a disciplinary hearing. She stated that she did not make any accusations rather read out two incident reports from the Head of Operations setting out her concerns with recent jobs which were not handled as per the training.

The Respondent states that CB of HR attempted to speak to the Complainant several times during the week both via the Complainant’s work phone and left messages to discuss the grievance/HR issues.  The Respondent states that when the Complainant failed to return the calls, an email was sent by CB to him requesting a call/meeting to discuss the issues directly with him. The Respondent states that this email was sent at 2.55 pm on 1 November 2024. The Respondent states that the Complainant subsequently sent his letter of resignation by email later that day at 5.11 pm.  The Respondent submits that it is evident that the Complainant resigned from his position at 5.11 pm via his work address/phone and the email attaching his resignation shows the email was sent from his work phone (the bottom of the email states sent via “Android”).  

The Respondent states that while the Complainant contends he was on annual leave on the 1 November 2024 and therefore he did not have access to his work phone; the Respondent disputes this assertion. The Respondent states that the Complainant’s work phone was the only method available to him to gain access to his work email as he did not have a PC so in order to send his resignation letter it is most likely he would have seen the missed calls from HR seeking to meet with him on the phone screen along with the email from HR earlier that day prior to sending in the resignation confirming attempts to set up a meeting specifically in relation to this matter. 

It was submitted that there was a phone call at 3 pm between the Complainant and CB of HR, wherein CB confirmed that she had been trying to reach the Complainant and expressed regret that he did not attempt to speak to her or her colleague S in HR prior to taking the decision to resign. The Respondent states that CB also confirmed that she would investigate the deduction of €200 as a priority but in her view, she would seek to have it reinstated as he had now resigned so could no longer follow internal grievance processes. The €200 was subsequently refunded in the Complainant’s final salary.

The Respondent cited the caselaw in Western Excavating (ECC) Ltd. v Sharp [1978], Berber v Dunnes Stores [2009] 20 ELR 61, Paris Bakery and Pastry Limited v Mrzljak [2016] 27 ELR 104 and Gibbons v Blackrock Hospital Limited [2006] ELR 214 in support of its case.   

The Respondent argues that the company did not repudiate the Complainant’s contract. It states that the Complainant had alternative options such as talk to HR/invoke the grievance process/seek mediation which he chose to ignore.

In conclusion, the Respondent states that the Complainant did not use the internal grievance channels prior to taking the decision to resign. The Respondent states that it offered HR support to the Complainant in order to address his grievances, however the Complainant chose not to avail of same. The Respondent argues that there was no fundamental breach of contract and that the Complainant resigned prematurely and did not address his grievances fully internally. The Respondent argues that the Complainant’s resignation was based on personality clashes or dissatisfaction but not misconduct.          

CA- 00067183-001- Terms and Conditions of Employment

The Respondent states that a meeting was convened on 24 October to discuss the protocols required when undertaking a transport run for the Art Department. It submitted that this meeting was not intended to be a disciplinary hearing. This was explicitly confirmed in an email sent to the Complainant on 4 November 2024. The Respondent contends that in those circumstances, there was no breach of the Complainant’s terms and conditions of employment.

CA- 00067183-002- Payment of Wages

The Respondent states that during a meeting on 24 October 2024, the Complainant was informed that a deduction of €200 would be made from his wages due to failure to carry out duties as per his training.  The Respondent submitted that in light of the Complainant’s resignation and the absence of an opportunity to fully discuss his grievance, a recommendation was made by HR that the €200 deduction be reimbursed. It was submitted that the €200 was returned to the Complainant in his final payroll.  It submits that in those circumstances, there is no breach of the Payment of Wages Act.

CA-00067183-003 – Constructive Dismissal 

The Respondent states that the Complainant’s allegation of constructive dismissal is based solely on a deduction of €200 from his wages, which occurred following a discussion with MW (former Director) on 24 October 2024. However, this deduction was reversed and returned to the Complainant in his final payroll. 

It was submitted that the Complainant did not raise a formal grievance about the issue, nor did he engage with HR despite proactive efforts to reach him. The Respondent states that two other employees, who were also spoken to in relation to the same protocol concerns, accepted the company's position as reasonable and did not raise any objections or claims in relation to same.  

The Respondent contends that the Complainant's resignation on 1 November 2024 was premature, avoidable, and did not meet the legal threshold required for a finding of constructive dismissal.

CA- 00067183-001- Terms and Conditions of Employment (Information) Act

Having carefully examined the within claim, I find that the Complainant has not established a breach of the Terms of Employment (Information) Act. Accordingly, I find that this complaint is not well-founded.

CA- 00067183-002- Payment of Wages Act

The Complainant has not established a breach of the Payment of wages Act in circumstances where the €200 deduction from his wages was reimbursed by the Respondent in the Complainant’s final pay. I find that this complaint is not well-founded.

CA-00067183-003 – Constructive Dismissal 

The Relevant Law – Constructive Dismissal

 Section 1(b) provides as follows:

 “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.”

The Act places a high burden on a Complainant in a constructive dismissal case. To succeed in a claim of constructive dismissal, the Complainant must show that his decision to resign in November 2024 resulted from either a repudiatory breach of his contract of employment or such unreasonable behaviour by the Respondent that he was justified in believing that he could not continue any longer in that employment. Furthermore, the Complainant is required to allow an employer an opportunity to rectify any workplace issues before resigning.

In Berber v. Dunnes Stores [2009] 20 ELR, the Supreme Court held as follows:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

Based on the evidence heard I note that the Respondent had comprehensive policies and procedures in place including grievance procedures. I note that the Complainant was employed with the Company since 2017 and therefore was aware of said procedures.

I note from the evidence heard at hearing that HR sought to engage with the Complainant and made efforts to discuss the matter with him, however the Complainant emailed the Respondent on 1 November and stated that he was resigning his employment.

The purpose of grievance procedures is to resolve internal staff issues as well as to investigate those grievances. In the within matter, the Complainant failed to utilise the grievance procedure thereby not allowing HR any opportunity to address the issues with him.

In the circumstances, I am satisfied that the Complainant acted precipitously in resigning his employment on 1 November without exhausting the internal process and procedures available to him.

Having carefully evaluated the evidence adduced in the within claim and the high bar set in terms of a constructive dismissal case, I find that the Complainant has not established that the Respondent’s actions were so unreasonable and intolerable that the Complainant had no other option but to resign. There is an onus on the Complainant to demonstrate that he acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve the grievance prior taking the decision to resign. In that regard, I find that the Complainant acted prematurely by resigning on 1 November without allowing HR any opportunity to address the matter. In those circumstances, I find that the Complainant was not constructively dismissed by the Respondent.

CA-00067183-001- Terms and Conditions of Employment (Information) Act

I find that this complaint is not well-founded.

CA- 00067183-002- Payment of Wages Act

I find that this complaint is not well-founded.

CA-00067183-003 – Constructive Dismissal 

I find that the Complainant was not unfairly dismissed.

Unfair Dismissals Act, constructive dismissal, Payment of Wages Act, Terms of Employment (Information) Act