Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Dylan Nolan Ibec

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act 1969.

IR - SC - 00004211

30/04/2025

The worker alleges that he was constructively dismissed from his employment due to breaches of Health and safety regulations. This allegation is denied by the Respondent.

 The Worker read out a statement he had prepared for the hearing. In it, he outlined a claim for constructive dismissal due to unsafe working conditions and employer conduct. The Worker stated that he was repeatedly instructed by management to operate a Reach Truck forklift outdoors and across a public road, even though the machine is specifically designed for indoor use and his licence only covered indoor operation. He was asked to carry out this task on 14 April. He was very unhappy about it.

Despite informing management on the 14th that this task was unsafe, illegal, and outside the scope of his training and licensing, the Worker stated that he was instructed to perform the same task again on 15 April. Under repeated pressure and feeling compelled to comply, the Worker reluctantly attempted the task. While approaching a hill leading onto a public road with moving vehicles, the Worker was forced to cross the road in a dangerous manner, resulting in a near-overturn incident. This left him shaken and further confirmed, in his view, the immediate danger to which he was exposed. He finished his shift and went home.

The Worker stated that he did not want to continue performing the task as it was unsafe, and that if he was forced to do so, he told his manager that he would “be out of here”.

The following morning, 16th, when the Worker returned to work, he was refused entry to the premises, prevented from accessing his desk, and told that he could not enter the building until he met with the company Director. Due to what he considered to be the unreasonable treatment by the Respondent, he felt that he had no option but to resign his position. He notified the Respondent that he intended to bring a claim to the WRC. At that point, he was informed that he was being suspended with pay pending an investigation into the incident.

The Worker stated that the loss of his job caused him personal and financial strain and upset. He secured new employment eight weeks later and is now paid in excess of the amount paid by the Respondent.

On 15 April 2025, the worker was instructed to undertake a pallet collection using a forklift truck. This task formed part of his normal duties. The Worker had received appropriate forklift training and had previously confirmed that he had no issue carrying out such work.

The Worker did not complete the pallet collection. Upon returning to the warehouse, he collected his personal belongings and left the premises without providing a clear or detailed explanation as to why the task had not been carried out or why he was leaving work.

Following this, the Respondent reviewed CCTV footage relating to the relevant period in order to establish whether any accident or incident had occurred. The footage showed no evidence of any incident. An incident report form was subsequently completed by the Respondent, which also recorded that no incident had taken place.

On 17 April 2025, the Respondent wrote to the Worker requesting that he provide his account of the events of 15 April 2025 and explain his absence from work. The Worker did not respond or otherwise engage with this request. He did not turn up for work on the 16th April. The Worker was placed on paid leave while an investigation into this absence and in relation to the alleged incident was completed.

On 30 April 2025, the Respondent wrote further to the Worker confirming that an investigation had been conducted and that no incident had been identified. The Respondent also clarified that the Worker had not been instructed to drive a forklift on a public road; rather, he had been asked to use an internal forklift outdoors within the site.

On 2 May 2025, a closing meeting was held by the Respondent. At that meeting, it was confirmed that the Worker had resigned from his position and that no incident had occurred on 15 April 2025.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The claim is one of constructive Dismissal under the Industrial Relations Act.

Section 1 of the Unfair Dismissal Act defines constructive dismissal as:

“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”

The burden of proof, which is a very high one, lies on the Worker. He must show that his resignation was not voluntary.  As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 further performance”

If I am not satisfied that the “contract” test has been proven, then I am obliged to consider the “reasonableness” test

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

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair”

I am satisfied that the Worker did talk to his manager about the concerns he was having but it is accepted by him that he did not raise a grievance in relation to the issue. It is further accepted that that he was given a handbook at the commencement of his employment which contained the grievance procedure. He made the decision not to invoke it.  On that basis I find that the Worker failed to satisfy his obligation to exhaust the internal process prior to filing his dispute with the WRC.

In relation to the breach of Health and Safety allegation, it is not for me to decide whether driving a Reach forklift truck outdoor is in breach of the Health and Safety laws. That is outside of my jurisdiction. My jurisdiction is to determine whether or not in asking the Worker to carry out the task of driving the Reach forklift outdoors was a significant breach of his contract going to the root of his contract or was reasonable for the Worker to terminate his contract of employment . No evidence was adduced by the worker in relation to that specific issue. He merely stated that he was told during his training that it was unsafe to drive the forklift outdoors. The Respondent stated that that is not the case. The forklift is used to transport goods between their various warehouses within the industrial estate. That it what they are designed and insured to do.  Having considered the evidence of both parties carefully I conclude that the Worker is mistaken about the abilities/purpose of the Reach forklift. The acting upon that mistaken belief and terminating his employment was unreasonable. It was open to the Worker to either raise a grievance or speak to his line manager about his belief in relation to where the vehicle can and can’t be driven. He did neither.

Therefore, I conclude that the dispute fails.