EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
John O'Connor UD351/2012
against
Dairymaster
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr D. McEvoy
heard this claim at Killarney on 4th February and 28th, 29th April 2014
Representation:
Claimant : Ms Kattie O’Connell B L instructed by
Edward O'Sullivan, Solicitor, Courthouse Lane, Tralee, Co Kerry
Respondent : Ms Eliza Kelleher B L instructed by
Hudson and Browne, Solicitors, Quayside House, 1/2 Princes Street,
Tralee, Co. Kerry
The determination of the Tribunal was as follows:
This is a case of constructive dismissal and the burden of proof lies on the claimant.
Claimant’s Case
The respondent manufactures machinery for the farming industry, mainly for the milking parlours. The respondent manufactures machinery and equipment for dairy farming, in particular for the milk section of the industry. The Managing Director (MD) owns the business, his sister (FC) is the financial controller and PM is the production manager. The business was established in 1968 and employs around 300 people. It is one of the largest private sector enterprises in the county and exports many of its products.
The claimant commenced employment, as a general operative, with the respondent in the autumn of 1999. He had no recollection of receiving any documents on grievance procedures or on bullying and harassment. The claimant was glad to have this job and felt he had a job for life. He always worked under a supervisor and got on well with his first two supervisors but when one of his co-workers was promoted to the role of supervisor (the supervisor) in 2003 his situation within the workplace deteriorated. Up to his promotion the supervisor had the same status as the claimant.
It was the claimant’s evidence that he was subjected unwelcome and at times abusive language and behaviour by the supervisor. The incidents included inter alia referring to him as “a fat tub of sh…”, criticising his work and his work rate, making insulting and offensive remarks about some aspects of his private life, frequently assigning him to work in the grinding room and he refused him a day’s holidays when he wanted to renew his licence.. The claimant felt he could never please the supervisor. When he needed a fan to clear away the fumes from the chop saw the supervisor told him to bring in some of the coolant he uses in his car. On another occasion he started “f…..g and blinding and kicking boxes around” the polishing room because there was some rubbish on the floor. At times he had problems with piles. The supervisor questioned him his about spending so much time in the toilet and when he returned from the toilet the supervisor would check his watch. The supervisor allocated dirty and unpleasant tasks to him as compared to other workers. The supervisor asked him to unblock a toilet and indicated he could do so with a small plunger and he refused to do it because someone else had blocked it. He had been asked to clean the septic tank (in the old factory) and while doing so the supervisor stood behind his back making smart comments, telling him that it would put hair on his chest and would be nice in his sandwich. The supervisor would be smirking and throwing him dirty looks. All of this made him feel very low in himself. On several occasions he asked the supervisor why he was always down on him, why was he bullying him and why he was against him but the supervisor just walked away. When he told the supervisor that he would complain to the employer, he responded, “Tell him what you like. I don’t give a ‘sh..’
If he asked for help when he got unfamiliar or complicated tasks the supervisor either ignored him or told him to figure it out himself. He accepted that he failed sometimes and would accept being corrected if it was as done so in a normal tone. He also accepted that some of his mistakes led to a loss of materials.
The claimant was nervous about telling MD what was going on and was trying to build up the confidence to go to him. When he eventually approached MD about the supervisor the supervisor was causing him, his response was: “I can say nothing to that man. That man could tell me go away and get someone else. Things have gone very quiet and I had to drop prices in the last year .Go away back to your job and forget about it.”
Later, in September 2010, an anonymous letter was sent to the respondent criticising the supervisor and complaining about his treatment of some staff. The claimant and four other from the section were called to individual meetings on 29 September with MD, FC and PM (the production manager) and interviewed them about the letter. He was told that the Gardai would be involved and his finger prints and DNA would be taken.The claimant was asked if he had problems with the supervisor but when he tried to explain about his problems with him FC told him to forget about the past that they were ‘on about now’. He was not given the chance to explain. He had not written the letter and did not know who had.
From 2009 on the claimant had been feeling stressed, anxious and increasingly unwell and sick before going to work at the prospect of facing the ongoing abuse. In early August 2011he went to his doctor and was put on medication. He submitted medical certificates declaring him unfit for work right up to December 2011. The claimant’s solicitor wrote to the respondent on 10 August 2011, citing bullying and the respondent’s failure to address it as the reasons for the claimant’s illness. In its response, by letter dated 2 September 2011, the respondent’s solicitors indicated that this was the first complaint, formal or informal, that the respondent had received about bullying and suggested that the claimant contact his supervisor, who would be happy to assist him further with his difficulties. On 15 December 2011, the claimant’s solicitor wrote indicating that because of the constant bullying and harassment to which he was subjected the claimant was resigning from his job and would claim constructive dismissal unless the respondent compensated him. After several years of this treatment, the claimant could not face it anymore. He wanted to give up. He did not want to meet people and lost interest in his hobbies. He is still undergoing counselling and was feeling much better at the time of this hearing. .
A former employee gave evidence that the supervisor made fun of the claimant’s religious beliefs, and made some snide comments about his medical certificates. He corroborated the claimant’s evidence that he more than others was assigned to work in the grinding room. He did not as such have a problem with the supervisor but on one occasion he had been so upset about the way in which the supervisor had spoken to him that he went in the next day, although he was off on the day, to inform the production manager (PM) about the incident. Another former employee, who worked on the same floor as the claimant, gave evidence of seeing him upset and under pressure on the floor even though he was doing his best. The supervisor would sometimes ignore the claimant and then just at the last minute he would ask him to do some task with which he was not familiar and the claimant would be very confused. The claimant spoke to him about his low mental state and not wanting to carry on. The workers constantly complained about the supervisor among themselves but nobody wanted to complain to management as, like himself, they were afraid of losing their jobs. He too was interviewed on 29 September about the anonymous letter. He was told they would find out who wrote it and mentioned the Gardai, finger printing and DNA. He was asked if he had a problem with the supervisor. When he told them that some of the Irish workers were pleased that a complaint had been made, he was pushed to disclose their identity but refused as he did not wish to create suspects. He At one stage in his employment with the respondent he asked PM for a transfer because of the supervisor. This witness was later dismissed by the respondent for posting derogatory comments about the respondent on Facebook.
Respondent’s Case
The position of Managing Director MD) was that he works on the floor a lot and could see there was no problem with SS. MD talks to each employee at least once a week and they have opportunity to talk to him if they had any problems. He denied that the claimant had ever mentioned anything to him about the supervisor and further denied each and every statement alleged by the claimant to have been made by him on that alleged occasion. He further denied that he said to the claimant that he would have to drop his prices by 25 %. At no time during their many interactions did the claimant raise a concern, air a grievance or comment negatively about his supervisor. In addition he never observed him being pressurised or in any way maltreated by the supervisor. On the contrary, the claimant “was treated like royalty”. MD lives close to the claimant’s family and had put a lot of effort into him. He could not accept that the supervisor would rush the claimant at work as there was a lot of production planning.
The respondent called a meeting on 29 September 2010 to discuss the anonymous letter they had received complaining about SS. The letter contained serious allegations about the manner in which the supervisor treated some of the workforce. MD, FC and PM (the production manager) were present at the meeting. They were satisfied that the letter had emanated from a particular area on the floor from the computer/ printer used. On that basis they called five workers, including the claimant, working in that area to individual meetings. The purpose of the meeting was not to find out who wrote the letter but to ascertain who had a grievance. The evidence on behalf of the respondent was that the claimant made no complaint ‘high up or low down’ at the meeting and that the supervisor’s name was not mentioned by anybody at the meeting. The claimant was given every opportunity to raise any issues or concerns he might have at the meeting but he did not do so and smiled throughout the meeting. FC denied telling the claimant to forget about the past. The claimant “absolutely” never made them aware at any time during his employment of any difficulties he had with the supervisor. The supervisor had not been interviewed about the contents of the letter. The supervisor’s name was not mentioned at the meeting in September and when the claimant was asked whether he had problems at the respondent he remained silent.
MD was satisfied he knew who wrote the anonymous letter and it was not the claimant. MD knew very well what was happening on the floor. He has lots of people who keep him informed and he had a good idea who would be disgruntled. He knew the allegations about the supervisor were false because he checked with a lot of the employees. FC’s evidence was that the views expressed in the letter were not representative of the workforce in general; PM told her so. Further, they had ‘absolutely’ never been made aware by the claimant that he had problems with the supervisor.
PM, the production manager who also acts as the human resource manager and is the supervisor’s immediate superior. PM knew the claimant well and had a good relationship with him. He never received a complaint about the supervisor. There were ‘no vibes high up or low down’ about the supervisor and he had never heard him use bad language. It was his view that the claimant did not take health and safety matters seriously and this is reflected in the many memoranda on that topic. PM was confident that very little happened on the factory floor without his knowledge. Apart from one employee, there was no disgruntlement coming from that area.
PM never observed the claimant’s supervisor being abusive in any way towards him. The claimant had never made a complaint about the supervisor. The witness felt that there was a smear campaign directed against that supervisor based on the contents of that anonymous letter. Mention was made about presenting that letter to the Gardai. A copy of the respondent’s Dignity at Work Policy is attached to the Safety Statement which is available in the canteen(s).
MD’s son, who is the director of operations, gave evidence that he unblocked the toilet with a long-handled plunger in a few seconds. There are no small plungers on the premises. The toilet had been blocked with paper.
The supervisor told the Tribunal that the work done by the claimant was mainly of a repetitive nature. Usually his work was “ok” but at times he had “an odd issue”. The various memoranda involving the claimant were mainly concerned with health and safety issues. He always had excuses for not doing jobs properly. The supervisor maintained that at all times when issuing those reprimands about his poor work performance to the claimant he had always spoken to him in what he regarded as a normal way.
The supervisor described as rubbish many of the allegations made against him by the claimant, some of those incidents did not happen and those that did were not portrayed accurately. He found the allegations upsetting.
His evidence was that when he corrected or commented on the claimant’s work the frequent response from him was: “You’re at me”. The claimant was probably the most assisted employee on the factory floor and was never given tasks he was not trained or capable of doing. At no time did he address derogatory comments at the claimant and certainly did not use bad or offensive language to him. Apart from one particular former employee the supervisor was not aware that others viewed him negatively. He read the anonymous letter in which his name was mentioned. He was never questioned about the contents of the letter.
Determination
Having had the advantage of hearing the claimant give evidence, the Tribunal is satisfied that the claimant was a vulnerable employee. It further finds that he was a credible witness.
The Tribunal accepts the claimant’s evidence of his difficulties at work and is satisfied that the behaviours complained of constituted bullying in the workplace, contrary to the precepts of the “Dignity at Work Policy”.
The Tribunal fully accepts that the claimant spoke to the supervisor about the way he was behaving towards him, to no avail. He attempted to raise the issue with MD on one occasion and later with the three members of management at the meeting on 29 September 2010 but was rebuffed.The respondent’s bullying and harassment policy was not produced to the Tribunal until the third day of the hearing of this case. There was no evidence before the Tribunal that the claimant received any induction training in this policy. Such training would be necessary, in particular in this case, so that the employee could fully understand the policy and its requirements.
Management adopted a closed mind and failed not only to take any action but to in any way entertain the possibility that there may have been some truth in the claimant’s allegations.
The Tribunal finds it difficult to accept the evidence of the respondent’s witnesses that the supervisor’s name was not mentioned by either party at the meeting of 29 September 2010. It prefers the evidence of the claimant and the second witness on his behalf that both had been asked if they had problems with the supervisor. It was further clear from their evidence that the respondent was seeking to establish the identity of the person who wrote the anonymous letter.
In failing to address the claimant’s complaints about the supervisor’s behaviour towards him, the respondent acted unreasonably and it was reasonable for the claimant to resign. His claim for constructive dismissal succeeds. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 is allowed and the claimant is awarded compensation in the sum of €25,000.00 under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)