UD1588/2013

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1588/2013

CLAIM(S) OF:                                          

Sean Gleeson                                                                                                                     

against

Ocean & Maritime Agencies (Cork) Limited

and

Ocean & General Maritime Agencies Limited

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms. P. McGrath BL

Members:        Mr. D. Moore

                        Mr. N. Dowling

heard this claim in Dublin on 2 September 2015

Representation:

Claimant(s):

Ms. Cathy McGrady BL instructed by Ms. Aileen Fleming, Daniel Spring & Co, Solicitors, 50 Fitzwilliam Square, Dublin 2

Respondent(s):

Mr Kieran Kelly, Fanning & Kelly, Solicitors, 2 Hatch Lane, Hatch Street, Dublin 2

The evidence heard by the Tribunal was as follows:-

Giving sworn testimony, the claimant said that he was a part-qualified accountant who had worked for the respondent from 1995 but had left in 1998 when his role changed to sales whereupon the respondent’s principal (hereafter referred to as PX) approached him to return. Initially, all went fine but PX’s treatment of people was not satisfactory. The claimant became financial controller. He managed some fifteen people based in Dublin and Cork.

The work environment was always toxic and very difficult. PX’s marriage broke up. PX was very threatening. Violent, bad language was used to staff. PX always had to be right. The claimant became a director. PX’s wife had been a signatory. The claimant became one.

The claimant was invited to participate in the co-buying of a premises, The property market was buoyant. It would be like a pension scheme.

In late 2007 PX brought his girlfriend to work under the claimant. They would go missing for weeks. She was to report to the claimant. The respondent were shipping agents who represented an Italian client (hereafter referred to as GX). The business involved commercial cargo ships.

The claimant’s role evolved such that he had a heavy workload. He worked some fifty hours per week. There were many peaks and troughs. The office was happier when PX was not there.

In November 2011 PX and the claimant had words. The claimant was called names. (This happened a few times over the years.) All could hear. The office was small (about the size of a Tribunal hearing-room.)

In November 2012 the respondent started shipping from Dublin (as well as Cork). The claimant was given responsibility. PX negotiated with the shipping lines. There was extensive shipping by February 2013. There was turnover of hundreds of thousands of euro.

The claimant’s workload was some seventy hours per week. He worked early mornings and evenings. He was constantly tired. He would wake up in a sweat. He feared for his health.

GX had its own computer system which the respondent tried to integrate. The claimant’s workload kept increasing. PX rarely engaged with staff. The claimant felt that he was threatened unless he could sort things out. He felt that his job was under threat and that it was not looking good for him when a recruitment agency became involved in sourcing someone who could do his work. PX did not pick up the phone. The claimant felt that he was not being helped. He could not sleep at night. He felt vulnerable. He felt unwanted and forced out and that PX was speaking to someone. The work environment was toxic. PX would not say anything to people. They communicated mainly by e-mail. The claimant felt threatened and left. He could not cope. His home-life was suffering. He had been offered no help. He had no further communication till he had resigned. Turnover was short of two million euro. His grandfather had died. He did not get adequate sympathy. He had had no interaction with PX. He left the office thinking that he would not go back. He had wanted PX’s help and understanding. He had no way to raise issues, PX was the owner. The claimant spoke to his family. All concurred that the claimant could not go back. The claimant’s health had suffered.

After the claimant’s resignation PX tried to phone him but the claimant’s decision was made. The claimant had a one-income family with a mortgage. He had been given a company car.

After employment with the respondent the claimant was on medication for nine months. He then did retraining for nine months and got a one-year job for under thirty-five thousand euro. For the respondent he had earned sixty-four thousand euro and a car before any bonus. Initially, he had not been able to seek work after his experience with the respondent.

Giving sworn testimony, EH said that she had been a customer service representative for the respondent from the end of 2010 and had reported to the claimant. She had seen the dressing-down treatment that the claimant had got. The claimant’s face would go bright red. The claimant was more reasonable than PX when PX was not there. EH had huge respect for the claimant.

Bad language was used. Over an objection by the respondent’s representative EH was allowed to say why she had left. She said that she could not cope with the stress. She had never been treated like that before or afterwards. She felt that the treatment would not be repeated today.

Giving sworn testimony, an accounts assistant (hereafter referred to as MX) said that she had worked for the respondent from April 2012 to March 2013. PX would use bad language such as “Just f***ing do it!” He had no compassion and was not a problem-solver. MX rang her brother who advised her to leave. She made doctor visits and did not work for two years, The claimant tried to “hold it together”. MX had a breakdown and was still on medication. The claimant had been a great team-leader. MX could not cope with it all at the respondent company.

Giving testimony after taking an affirmation, PX said that he had been in the business since 1987. The claimant joined in 1995, left in 1997 and came back in 1998. PX represented GX in Ireland. He had to meet GX’s desires. PX had to cope with any increase in volume. He stated that he earned over one thousand euro per year.

PX and the claimant were friends. They socialised, lunched and exchanged confidences about personal matters. The claimant was a guest at his wedding.

PX said that he would do anything he might ask the claimant to do right up to washing windows. Regarding the claimant’s reference to the recruitment of a new person, PX said that he had “wanted a strong third pillar” but that the claimant had left at the prospect. PX had felt that the claimant had needed a third director.

PX admitted that his relationship with the claimant had been “up and down”. They “often had rows and then it went away”. It was not unusual that they would not talk for a few days.

PX denied having bullied the claimant who, PX felt, did not delegate and got overwhelmed.

Regarding the property bought before the collapse, PX said that the claimant had got thirty-five thousand euro but had not signed himself out of ownership.

Regarding the claimant’s departure, PX said that he had tried to ring the claimant but got no reply. He had not wanted the claimant to leave the respondent. They had needed a third person. The claimant had wanted twenty thousand euro and the company car on top of any package. PX had not seen the claimant for years.

Determination:

The Tribunal has carefully considered the evidence given. The claimant (SG) herein resigned his position in the respondent company in April 2013 following a working career of over ten years albeit with a short break. The claimant is claiming his resignation was by reason of a constructive dismissal situation having arisen in the workplace, and the claimant must therefore demonstrate to this Tribunal that this course of action was reasonable in all the circumstances.

The respondent company is involved in shipping and was for all intents and purposes run by the Managing Director (CD). The claimant was also a named Director of the Company. It is accepted that his position as Director was born out of a need for expediency and the claimant was at all times an employee and answerable to CD.

There can be little doubt but that this workplace was not particularly pleasant and that the single biggest factor that gave rise to this unpleasantness was the manner in which CD imposed his will on the workforce. Apart altogether from the evidence of the claimant the Tribunal was really struck by the evidence tendered by two independent employees of the company who described a hostile environment precipitated by CD’s overbearing disrespectful approach. To his credit, CD, in his own oral evidence, did not resile from the evidence which had painted him as somewhat hot-headed.

In his evidence CD conceded that he and S.G. had had many disagreements throughout their working relationship and that it was not unusual for them to go through periods of days where communication between them was fraught. This was made difficult as they were both situate in the same open plan office space. On these occasions, they communicated solely by use of e-mail.

Another distorting factor in the employer/employee relationship between the claimant and C.D. was the fact that that they considered one another to be good friends. Over the years they had lunched daily and socialised together and confided in one another to the extent that it is easy to see how there may well have been a blurring of the lines defining what is expected of an employee and what is expected of a friend. In this regard the Tribunal has to find that the onus lay on C.D. to clearly demark the parameters and that S.G. was given no guidance as a subordinate employee.

It is common case that the claimant was overworked and bore enormous pressure in the workplace. Having initially been employed as a Financial Officer, the claimant’s position expanded in time to that of Operations Manager which left C.D. to act as a Commercial Manager whose role it was to generate the growth. Despite a general downturn, things seemed to go well in this company. There was a high employee attrition rate as C.D. proved a difficult person to work with. The reliability of the claimant’s workforce was therefore always being compromised. This resulted in the claimant having to take on work which was labour intensive and an ineffective use of his time and expertise.

In the second half of 2012 the pressures increased by reason of internal demands being made by the respondent company’s biggest and most lucrative client (G Ltd.). In the October and November period G Ltd. had several of their representatives operating out of the office which created internal tensions which would eventually bring things to a head.

In his evidence, C.D. stated that he recognised that the claimant was not very good at delegating work. C.D. went on to state that he recognised that the claimant was an extremely good “fire fighter” implying he was good in a crisis but hopeless in the day to day planning and preparedness required. C.D. also gave evidence to the effect that he recognised the need to separate out the claimant’s two primary functions of Finance and Operations but at the same time C.D. gave evidence saying that the ebb and flow of work meant that the staff that were available were expected to meet the peak demand without the requirement of extra help.

Curiously, CD gave evidence that he wanted the claimant to recognise his own shortfalls and to come up with a comprehensive plan to meet the expectations required of him.

C.D. gave the impression that this was akin to some kind of test that the claimant could pass or fail. In his evidence, C.D. said he had a plan that there should be three pillars of strength in the company and that he planned on bringing a new financial officer into the company. The Tribunal does not accept his decision was made known to the claimant in advance of the series of events which ultimately gave rise to the resignation herein.

Towards the end of March 2013 matters came to a head culminating in a highly unprofessional e-mail being sent by C.D. to the claimant on the 29^th March 13.09. The context of this e-mail demonstrates a lack of restraint and, more importantly, a lack of leadership from the person who, ultimately, was in charge of and running this workplace. The idea that the comment describing behaviour as “a bit feminine really” which is intended as disparaging is seen by this Tribunal as a commentary on C.D.’s values and mindset and the Tribunal must state its abhorrence for this mindset.

In a highly pressurised, tense and unhappy atmosphere the claimant and C.D. decided to go for a lunch in the hope of resolving a few issues on the afternoon of the 19^th of April.

Unfortunately, the lunchtime meeting deteriorated quite dramatically. Insults were traded with both men taking umbrage at what had been said.

The blurring of the line between the employment relationship and the personal relationship becomes particularly evident when the claimant says something associated with C.D.’s marriage breakdown which can only be interpreted by the Tribunal as not being acceptable as part of a workplace disagreement.

There was a truculent exchange of e-mails over the next few working days. Again, the issue of what is acceptable to the employer is re-iterated when he says in e-mail of the 24^th of April 2013 - “For me the over-familiarity evidenced in your targets are hampering the business…”

The Tribunal finds that, in the aftermath of this row and series of e-mails, the claimant made the decision that he could no longer work within the respondent company. The claimant settled internal financial affairs (including the return to himself, of a commercial loan which was due and owing to him) and pre-organised the payment of the last round of wages before heading away on a pre-planned personal leave period.

The Tribunal must now decide whether this decision made (or at least articulated on the 26^th of April 2013) was a reasonable one in light of all the circumstances leading up to it.

The Tribunal notes that the claimant had no-one to turn to. There was no recognisable HR department nor was there any 3^rd party H.R. Service being used by the respondent employer. The claimant clearly felt that he had spent too long not being listened to about his workload and had now fallen out with his employer in a seemingly unrecoverable way. As against these factors the Tribunal must also be cognisant of the fact that the claimant has endured this highly pressurised and overbearing workplace for up to eighteen years and must ask was there any significant difference in the events leading up to the 26^th of April 2013 as compared with the previous fallings out.

On balance, the Tribunal finds the claimant was driven to the point of tendering his resignation solely by reason of the unacceptable levels of pressure, criticism and hostility he was enduring. The behaviour was having a calamitous effect on the claimant’s mental and physical health and, whilst the claimant may have shown resilience to this behaviour in the past, any employer has to recognise that an individual can only be pushed so far before an inevitable constructive dismissal arises.

The post-resignation discussions have no bearing on the reasonableness of the decision at that point in time and, in any event, the post-resignation discussions could give the claimant no comfort that a return to the workplace would have been on better terms.

Under the Unfair Dismissals Acts, 1977 to 2007, the Tribunal finds the claimant was unfairly dismissed and awards the sum of €20,000.00 (twenty thousand euro).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)