FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SALVATION ARMY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY EUGENE SMARTT SOLICITOR) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR12640/02/GF.
BACKGROUND:
2. The worker commenced employment on the 24th of July, 1994, as a catering assistant / porter in the kitchen of the Salvation Army's York House Hostel, Dublin 2. He claims that apart from his own duties he often had to do the work of other staff members. Some of these employees would report for work drunk or drugged and the worker believed that, from the beginning, the workplace was unsafe.
The worker's main complaint is that he was the subject of a campaign of serious bullying, hostility and intimidation, particularly from 4 other employees. The campaign involved both physical and mental abuse. (The worker supplied details and dates of various assaults to the Court.) He claims that although he brought these complaints to the attention of his employer, it failed to deal adequately with them. A grievance meeting took place on the 18th of August, 1998, but the harassment continued. He made further complaints to his employer but again maintains that no action was taken.
The worker claims that because of the ongoing harassment and lack of protection by his employer, he began to suffer from stress and depression. He increasingly took leave of absence on the grounds of ill health and eventually resigned on the 21st of August, 2002. The worker believes that he had no choice but to resign. He hoped to be given some sort of severance package but this did not happen. (It had been announced in February, 2002, that the kitchen in York Street Hostel was to close). He claims that the employer did raise the issue of a redundancy/severance payment but later withdrew it.
The employer's case is that it was not aware of the extent of the worker's problems, certainly not after 1998. The worker had joined SIPTU in 2002 and the employer had regular meetings with the Union in regard to the situation. The employer denies that any dismissal took place as the worker resigned of his own accord.
The dispute was referred to a Rights Commissioner and his findings and recommendation are as follows:-
Findings and Recommendation
"I find this case very sad, the nature of the claimant's employment must have been very stressful to say the least. Despite the best effort of his employer to provide a duty of care it finally had a poor effect on his health. However, I could not attach any blame to his employer and it cannot be regarded as a constructive dismissal. Therefore, I must find for the employer.
I note the claimant's years of loyal and valuable service over many years in difficult circumstances and I was saddened to hear of his breakdown in health. Perhaps the employer might take his current predicament into account when writing to him to thank him for his years of service and maybe provide some modest financial assistance in these trying times."
The worker appealed the recommendation to the Labour Court on the 18th of August, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 17th of October, 2003.
WORKER'S ARGUMENTS:
3. 1. The employer was aware at all times of the harassment and bullying that the worker was subjected to but did nothing about it.
2. Two other employees who were treated in the same manner as the worker concerned were dismissed. This left the worker feeling very vulnerable.
3. The worker was offered no counselling services.
4. The worker reported serious threats made against him to the Gardai but the employer still did nothing to stop the harassment.
5. The worker was left with no choice but to resign due to his employer's failure to protect him in the workplace. It is unfair that he has received no financial compensation.
EMPLOYER'S ARGUMENTS:-
4. 1. The worker was not dismissed but resigned freely and of his own volition.
2. The employer does not have a policy of paying severance packages to employees who choose to resign. However, in this case it was looking at some sort of package for the worker but could not match what the Union was seeking.
3. The claimant was offered alternate work in the Granby Centre. He reported for work on the morning of the 20th of August, 2002, but left after less than one hour.
4. The worker was offered the use of a confidential counselling service on 2 occasions but he did not avail of the offer.
DECISION:
It is noted that material facts relating to the background against which the claimant left his employment were not made known to the Rights Commissioner at the original hearing and could not have been taken into account in his recommendation.
It is clear from the evidence before the Court that the claimant was subjected to incidents of bullying, harassment and physical assault in the course of his employment. The Court is satisfied that these occurrences had a lasting effect on the claimant and caused him continuing stress, anxiety and depression. The Court is further satisfied that this in turn resulted in the claimant feeling unable to continue in his employment and in his subsequent resignation.
In the Court's view, the general duty on an employer to safeguard the health and safety of employees extends to the reasonable prevention of occupational stress and associated conditions and to deal adequately with such conditions where they are known to have occurred. On the facts of the present case, it should have been apparent that the claimant was likely to suffer ongoing adverse consequences from his experiences at work. However, this may not have been fully appreciated by the employer. It appears to the Court that, in consequence, their response was inadequate to ameliorate the stress and anxiety which the claimant continued to suffer arising from those experiences, and that this culminated in his resignation.
Taking account of all relevant factors, the Court believes that it was not unreasonable for the claimant to request a severance settlement on the termination of his employment. Having regard to all the circumstances, the Court believes that the employer should offer and the claimant should accept an ex-gratia lump sum of €10,000 in full and final settlement of all claims against the employer.
The appeal is allowed and the Rights Commissioner's recommendation is set aside and substituted with this determination.
Signed on behalf of the Labour Court
Kevin Duffy
28th October, 2003______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.