UD535/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                              CASE NO.

Dean Byrne     -claimant

                                                                                                                    UD535/2013

against

Menapia Motors Limited T/A Menapia Motors        -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms D. Donovan B.L.

Members:     Mr J. Browne

                     Mr N. Dowling

heard this claim at Wexford on 9th July 2014 and 9th October 2014 and 10th October 2014 and 11th December 2014

Representation:

Claimant:        Mr. Richard Downey B.L. instructed by

             Mr Ian Ryan, John G Flynn, Solicitors, Robert Street, New Ross, Co Wexford

Respondent:    Mr. Martin Fitzgerald B.L. instructed by

                       Derek Murphy, Derek Murphy, Solicitors, P.O. Box 23, Ferrybank, Wexford

Summary of evidence:

The claim before the Tribunal was one of constructive dismissal. The claimant is a qualified mechanic and was employed with the respondent company from the latter part of 2010. The respondent company is one of a number of garages owned by DB. The claimant stated that the efficiency of his work was high with a rating of 97% and the company agreed there was no issue with the quality of the claimant’s work. The claimant was based in the workshop alongside the Service Manager, a Service Adviser (Employee N) and another mechanic Employee P.

Employee P commenced his employment one month after the claimant and it was the claimant’s evidence that their working relationship was “bad” from the beginning. The claimant outlined a remark passed by Employee P on the first day of his employment to the claimant. The claimant reported this to the Service Manager who put the remark down to a language barrier. The claimant outlined other remarks made by Employee P in February 2011. The claimant used the canteen over lunch but this changed after Employee P commenced his employment. When the claimant spoke in the canteen he was always told to “shut up.” The claimant felt isolated and excluded and began to avoid the canteen. The Service Adviser enquired one day about why he did not use the canteen and he told her that he was afraid to. The Service Adviser told him she would mention it to DB, the owner of the company.

It was the claimant’s evidence that DB spoke with the claimant about feeling isolated and threatened by Employee P. It was the claimant’s evidence that DB admitted in this meeting that this conduct was bullying but that he could not decide who was in the wrong and that the claimant was fortunate to have a full-time job. Subsequently the claimant was called to a meeting in the canteen by DB. There he was asked to shake hands with Employee P. The claimant felt humiliated by this and he felt pressure to shake Employee P’s hand. It was the claimant’s evidence that matters deteriorated between him and Employee P after that. It was his evidence that this meeting in the canteen took place in the summer of 2012 while DB in his evidence stated that it took place after the claimant’s review in December 2012. DB described in evidence how he had spoken to both of them separately but it was not a “big deal” so he did not minute his meetings with them. He then brought the claimant and Employee P together and told them that it was a small business and asked them to shake hands. Both the claimant and Employee P said it was not a big issue but they did not want to shake hands.

In or around this time the Service Manager at one point told the claimant that the only way to sort matters out was to lock both the claimant and Employee P in a shed with ply bars and let them beat each other. Around the same time Employee P was reported to Revenue. The Service Manager asked the claimant if it was him who had reported Employee P. The claimant denied this. Later that day Employee P cornered the claimant in the bathroom and said that he was going to burn the person who reported him and that there would be “some f***ing smell.” The Service Manager was also in the bathroom at this time and witnessed the incident but did not intervene. The claimant outlined a number of other incidents including finding his overalls soiled with oil one day andwhich he reported to the Service Manager.

Employee M, a friend of Employee P’s commenced employment with the respondent as a valet operator and he was cold towards the claimant. On 19 February 2013, the day before the claimant departed the employment Employee M told the claimant he would kill him if he touched the wet paint that he was painting on the ground.

On 20 February 2013 the Service Manager drove a mini-bus over this wet paint area but Employee P assumed it was the claimant who had done this. The Service Manager just smirked when the claimant was blamed by Employee P for driving the bus over the area. Employee M then became involved and called the claimant a “f***ing idiot” and pushed the claimant backwards. The claimant told ND (another employee) that he could not take anymore and that the bullying had not stopped and he could not deal with it. The claimant also spoke to the Service Adviser before he left and told her that Employee M had assaulted him. The claimant departed the employment that day and later emailed DB. He was not contacted in the intervening period. After the claimant had departed the employment he returned to collect his toolbox but a number of items were missing from it. He reported this to the Service Manager and the Service Adviser but the tools were never found.

DB received the claimant’s email dated 20 February 2013 and was taken aback by the email as he was unaware of any historical issues between staff with the exception of the time that the Service Adviser informed him that the claimant and Employee P were “not getting on.” The subject line of the email from the claimant was “complaint of assault and continuous harassment.” The claimant wrote to DB that “as you are aware of the continuous bullying and harassment in the work place, and after today’s incident I have no alternative but to leave the work area today.”

DB replied by email dated 25 February 2013 which stated inter alia that the Service Manager had reported to him that the claimant had left the workplace on 20 February 2013 but made no mention of “bullying and harassment” at that stage or at any other period over the course of his employment. DB denied that he was aware of continuous bullying and harassment in the workplace” as alleged by the claimant in email dated 20 February 2013. DB appointed the Financial Controller to investigate the matter and requested the claimant to set out the nature of his complaint in detail which the claimant did by email dated 26 February 2013.

The Financial Controller (FC) met with the claimant on 6 March 2013 as part of the investigation but no notes were taken of this meeting. It was the claimant’s evidence that at this meeting he outlined what had happened on the last day he worked but he also spoke about the historical incidents in the workplace. It was FC’s evidence that he had already met with the other staff members on 27 February 2013 by the time he met with the claimant on 6 March 2013. When he met with the claimant on the 6 March, the claimant submitted the medical certificate regarding the injury. FC admitted in evidence that he had missed the title of the claimant’s email on 20 February 2013 to DB which referred to an assault. FC had interviewed the other employees before meeting with the claimant on 6 March 2013 and he accepted that as he had missed the title of the claimant’s email, he could not have asked any of the staff members about the alleged assault. He did not realise the gravity of the claimant’s allegations until he was handed the medical certificate on 6 March 2013 and the claimant stated that the injury was work-related when Employee M had pushed him.

FC met with the members of staff again in light of this and he wrote to the claimant in respect of this on 8 March 2013 and regarding an appointment with the company doctor. On 12 March 2013 the claimant wrote that he had “every intention of returning to work when I have a clear medical from my doctor, assuming disciplinary action has been taken to those involved.” He also wrote to the company on 14 March 2013 stating that his physician had deemed him fit to return to work.

Later that month the claimant attended the appointment with the company doctor but he also requested a P 45 on 22 March 2013. This was later provided to him in May 2013. The company did not receive the doctor’s report until June 2013. The claimant lodged his claim with the Tribunal on 5 April 2013. The claimant gave evidence of loss and his efforts to mitigate that loss. The claimant stated that he had applied and been approved for a mortgage the same week he last worked.

The claimant stated that he was unsatisfied with the company’s actions between February and April. He had asked to transfer to one of DB’s other garages in mid-March but FC told him there were no vacancies. The claimant was not told that perhaps a transfer would be possible at a later stage. Employee C moved from another of DB’s garages to the respondent garage two weeks later to fill the claimant’s position.

FC reached a conclusion at the end of March that the claimant’s allegations could not be substantiated as none of the staff recalled or corroborated any of the incidents that the claimant alleged took place. All the employees said there was disagreement but no one stated that there was an assault or that they were aware of ongoing issues. FC’s report was not finalised until August 2013. He found that there was no objective or independent evidence of bullying or harassment of staff against the claimant. FC confirmed that there is no bullying and harassment policy in place in the company. The claimant felt that FC’s report was biased because it insinuated that the claimant was the problem in the workplace.

The claimant’s annual reviews were carried out by DB and it was the claimant’s evidence that as well as discussing his performance they had also discussed the bullying and the fact that the Service Manager was not reporting the situation in the workshop to DB. In the claimant’s review in 2011 DB recorded that Employee P was not always helpful to the claimant and that the Service Manager was a bit disorganised. It was the claimant’s evidence that he had opened up to DB at the review about the problems with Employee P but that DB did not take any interest in his complaints.

In the review for 2012, the claimant stated that he raised the isolation of him by other members of staff. DB wrote on the review form that there were “issues with co-workers” and “working towards resolution” under the heading “building relationships and teamwork.”

In his evidence DB stated that the only thing he recalled the claimant saying at the review in 2011 was that Employee P was not overly helpful and that the two of them were “not getting on.” When DB asked for examples of this the claimant stated that Employee P gave short answers to him. DB made the Service Manager aware of this issue and Employee P was asked to be as helpful as possible. The following year DB read this to the claimant at the review in 2012 and he said thatthe claimant told him “things are grand.”

Determination:

Having considered the evidence adduced at the hearing the Tribunal finds that even if the conduct alleged by the claimant was true it was not conduct such that entitled the claimant to leave his job and consider himself constructively dismissed albeit that the Tribunal accepts that the claimant was clearly upset and stressed at work during the material time.  

However, the claimant was entitled to have his grievance dealt with in accordance with proper grievance procedures and the Tribunal finds that the respondent failed to so do.

The Tribunal finds that the manner in which the claimant’s grievances were dealt with by the respondent caused the claimant to suffer a loss of trust and confidence in the respondent and this loss of trust and confidence entitled the claimant to leave his job and to consider himself constructively dismissed. The Tribunal accepts that the respondent did not act in bad faith but if the matter had been handled more appropriately the claimant’s job may have been saved.  

Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €9,500.

The Tribunal does not accept that the claimant had a right to assert he would only return to work if the colleagues against whom he made the complaints were disciplined. By taking this attitude with the respondent the claimant did not help matters and the Tribunal takes this into account in calculating the award.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)