ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000446

Complaints for Resolution:

Date of Adjudication Hearing: 06/04/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaintto me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant was an employee of the respondent company for over eight years. He is a fully qualified electrician.

Leading up to his resignation in August 2015 he says that he was subjected to continuous ‘bullying and harassment’ by certain of the directors of the company.

By way of example the complainant would receive calls late in the evening during the week and at weekends from a director of the company and the director’s wife; often seeking his assistance with trivial matters not appropriate to his skillset. He says he would also receive calls from his supervisor late in the evening.

The complainant suffered an accident at work in October 2014 and sought to have an assistant appointed but says his supervisor declined to do so. The supervisor also failed to record or report the accident.

The complainant made the respondent aware of his general difficulties in January 2015 after he was certified unfit for work due to stress. The respondent reacted by supplying the claimant with a company phone and a company van but took no further action in relation to his bullying and harassment claim. He had one week’s sick leave following this meeting as a result of stress.

He suffered another injury on February 26^th 2015 and was subsequently placed on ‘light duties’ but says his supervisor required him to continue to perform the full range of duties.

The proper company grievance procedure was not followed and no investigation took place and subsequent to his complaint the alleged bullying and harassment continued, and in fact got worst. The complainant was asked to do jobs for his supervisor’s family and had concerns that he might not have been insured for such work and was not comfortable in doing so. This lead to further stress on the claimant and he felt he could not trust his supervisor’s instructions.

He notified HR of this issue and again no action was taken. The problems continued and in August 2015 the complainant requested a day off (initially four days) to bring his son to school on his first day back. The complainant sought this as he had been previously denied holiday days he requested. The complainant says that following this request for a day off his supervisor contacted him an hour and half later.

In August the complainant requested a meeting with the HR manager and this took place on August 27^th 2015. She offered him the option of a transfer to a construction site but this would have the consequence that he would be required to hand back the company car and company van.

He says he was advised of this on a Thursday and told he was to return the van and telephone the following week. The complainant states that this was effectively a demotion and would result in lower wages. He was not prepared to accept this offer.

Following this particular incident and the constant bullying and harassment at the hands of his employers the claimant felt he could not continue working in these conditions and had no other option but to resign. He handed in his notice on August 27^th 2015. He felt there was a clear breakdown in the employment relationship and that the actions and conduct of his employers made it reasonable for him to terminate his employment

The complainant says his employer failed to keep relevant statutory employment records. He says he was involved in a work place accident which was never reported or recorded by his employer.

Regarding the claim under section 7 of the Terms of Employment (Information) Act, 1994 the complainant says that he was entitled to be notified of various changes in his Terms of Employment and his employer failed to do so.

The claim under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 was withdrawn at the hearing.

Respondent’s Submission and Presentation:

The respondent says that the complainant was a valued employee and that at no stage did it wish to lose him. Despite the company’s workforce being substantially reduced in the course of the recession the complainant retained him in employment for that reason.

It confirms that it met the complainant on January 19^th 2015 but says that this was in the nature of an informal meeting and that it understood that the various steps it took at that stage resolved the complainant’s grievance.

In respect of one of the issues that would emerge in the August/September meetings; his deployment to non-company work, this was raised at the January meeting with a specific request that nothing be done about it.

The respondent says that following this the complainant approached his supervisor about the possibility of being made redundant and also mentioned his sense of grievance about the calls he was getting from the Director and his wife. The Supervisor told him that he (the supervisor) would look after any ‘out of hours’ calls and told the complainant to bring any future calls to his attention. However, despite this invitation the complainant did not at any stage do so.

(At the August 27th meeting the complainant said, according to the evidence of the HR Manager that the volume of calls from the Director was the reason he was leaving).

Regarding the complaint about receiving late night calls from the Supervisor he (the supervisor) said in direct evidence that he and the complainant were personal friends and socialised together. He only ever called him on personal matters or by way of returning a call to the complainant. He also said that the complaint about working on co-workers’ personal projects was a company ‘perk’ which had also been enjoyed by the complainant.

Regarding the request for annual leave in August 2015 the supervisor gave evidence that he was not aware of the reason the complainant sought the leave but it was not possible to accommodate the request due to the pressure of work at that time.

In the course of the meeting on August 27^th 2015, of which notes were exhibited, this was the first occasion the company learned of any difficulty with the alleged excessive demands by the Director and his wife, or any dissatisfaction with the complainant’s supervisor. The respondent submitted that claims made by the complainant about what he said at the January meeting were untrue and that in any event he did nothing about these grievances for a further eight months.

The complainant submitted his resignation at this August 27^th 2015 meeting and had come to that meeting with the resignation letter in hand.

The company initiated a grievance process to investigate the complainant’s grievance once it became aware of it and a grievance hearing took place on September 10^th 2015. It was chaired by the HR Manager and the complainant attended and was accompanied at the meeting by his brother.

The complainant raised some additional issues at this meeting which had not been raised even at the August 27^th meeting, bearing in mind that he had already tendered his resignation at that earlier meeting.

These issues concerned the communications after working hours, break times, working on non-company sites and concerns about whether he was insured while working there, the refusal of his annual leave and the non reporting of the accidents.

The HR Manager issued her findings on September 15^th 2015 and proposed a number of what the respondent describes as ‘constructive’ solutions, primarily turning on the transfer of the complainant to site work as an electrician.

The respondent received an email from the complainant on September 25^th advising that he did not wish to appeal the conclusions of the Grievance process and requested his P45 with an effective date of August 27^th 2015. He objected to the person designated to hear the appeal as he had a prior involvement in the matter.

The company responded urging the complainant to reconsider his resignation and offering to have the appeal heard by a person other then the one initially proposed. The complainant did not respond to this offer and within an hour had returned the company vehicle.

He also stated in this email to the HR Manager that he wished her and the company the very best and continued; ‘I have fond memories of my time in [the company] and the friends I have made’.

The respondent replies to the claim under section 7 of the Terms of Employment (Information) Act, 1994 that the complainant’s job description did not alter at any point and that his initial employment as an electrician continued. It says it was not under any obligations to notify him as no material changes occurred.

Findings and Conclusions

The burden of proof in a constructive dismissal case is an onerous one, just as it is when the position is reversed and an employer is required to justify a dismissal initiated by that employer. In both cases it is for the same reason; the employment contract cannot be lightly sundered.

To deal more specifically with the complaint that the respondent was the victim of a constructive dismissal, a constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract. As noted above, the burden of proof is set high in such cases for the same reason that it is in unfair dismissals cases of the normal type. A breach of the employment contract sufficient to fall under the Unfair Dismissal Act must be very serious and well justified.

While the behaviour of the employer is critical, the employee’s behaviour must also be considered. Generally, in relation to the former this is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment (by the employer).

The Supreme Court has said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

(The respondent submitted a number of legal authorities to the same effect).

The respondent’s case is that when it first became aware of the complainant’s grievance in January it sought to address them and heard nothing from him for a further eight months. It assumed, and reasonably that the measures it had put in place had addressed the problem.

It says that the first it heard of most of the complaints was at the meeting on August 27^th 2015 when the complainant had already decided to submit his resignation. These were added to at the Grievance meeting on September 10^th and the company said it was hearing these for the first time. (At neither meeting was the company told of any complaints about the supervisor).

Looking at the company’s response to the grievance in its letter of September 15^th the following picture emerges.

In respect of the complaint about calls outside working hours it committed to putting in place ‘a structure to prevent excessive communication to all employees outside of working hours’.

On the complaint about meal breaks it reinforced the entitlement to breaks and offered to rectify any future breaches subject to them being reported in one week.

In relation to working on non company sites it noted that the complainant had not provided detail but again invited him to report any concerns to the company management and HR. It also confirmed that he was fully covered by insurance while working on these sites.

It noted that it was not possible to accommodate his annual leave request because of inadequate notice and pressure of work. (Incidentally the complainant took the day off anyway).

Regarding the reporting of accidents it restated company policy on reporting and offered to have his own injury medically assessed.

Finally, it proposed the option of assigning the complainant to a regular site to address his complaint about underuse of his skill set, but with the downside that he would no longer have use of a company vehicle.

The complainant responded three days later, basically restating his grievances at some length and rejecting the outcome of the grievance process.

In his conclusion he states that the proposed allocation to site work to align his skillset with his employment was not acceptable, and stating that in his current position for the previous six years he had ‘built extensive relationships up in my position’.

This entirely contradicts, or at least is very inconsistent with the central spine of his complaint and very significantly undermines it, especially as he goes on to say;

‘The reason for my resignation was due to health concerns and stress as my doctor advised changes must be made’.

In his email of September 25^th to the HR Manager he declined the offer of a medical consultation and objected to the designated appeal adjudicator. The company, on September 28^th agreed to appoint another adjudicator but this was not availed of.

Judged by the Berber test, and the general principles applicable to a constructive dismissal this complaint falls short of what is required in respect of any failings in the respondent’s actions which must at least be made aware of an employee’s grievances and have failed to act on them.

By the same token obligations are also placed on the employee to exhaust the established machinery for the processing of such grievances, at least to the extent that an employer is fully aware of a grievance and given the opportunity to address it.

In relation to the obligations falling on the employee the respondent relied on a statement of the EAT in Jabczuga v Ryanair Ltd [UD 66/2013] where the Tribunal stated.

The claimant in this case failed to fully engage with and exhaust the grievance procedure available to her. In resigning in circumstances the claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure its course the claimant did not afford tis opportunity to the respondent and the Tribunal is satisfied that she did not act reasonably in so doing.

A similar decision in Conway v Ulster Bank UD [474/1981] was referred to and is no more than an obvious statement of the obligation falling on an employee and which is in line with good HR practice and which I follow fully.

The respondent in this case acted quickly when it became aware of the difficulty in January and believed it had resolved the problem. Even when the complainant lost his assistant in May he did nothing about this, or anything else until August.

Again at that point the respondent acted with due dispatch in hearing the grievance and as far as possible sought to address it. The complainant’s rejection of a return to site work is hard to square with his previous complaints; it is hard to know what else the company could have offered.

Finally, it is very clear that the complainant’s mind was made up on August 27^th; he says for health reasons and it is doubtful if there was anything the company could have done at that stage to please him. His refusal of the option to appeal the outcome of the grievance process reinforces this view. There were no reasonable grounds to reject the first appointed adjudicator and in any event he declined the offer of an alternative.

The complainant made legal submissions in support of the proposition that where the employer’s behaviour becomes intolerable to the extent that the employee has no choice but to leave then this can ground a constructive dismissal claim.

It submitted four cases in all of which there had been clear adverse treatment of the employee, where the treatment was well known to the employer but despite this had failed to act on it.

But, the facts in Kennedy v Foxfield Inns Ltd. [UD548/1994] are entirely different to the current case. In that case there was sustained, gender-based bullying which included unwanted physical conduct by an Assistant Hotel Manager of an employee and of which the employer was on notice.

Similarly in Porter v Atlantic Homecare Ltd [UD 97/2007 the facts speak to a sustained campaign of bullying, sexist name calling, and various threats made by a male manager to a female employee. While the employee ultimately developed a stress related condition it was a direct consequence of a calibrated campaign of bullying by the manager.

In another case where the principles of A Worker (Mr O) v An Employer [2005] ELR 132 were applied by an Equality Officer in Stone v I. Maloney and Sons [2011] 22 ELR 74 there had been ‘continuing harassment over a year’ in which case the Equality Officer concluded that ‘the respondent was fully aware of her grievances, yet not only persisted with this unlawful conduct, but..had also started to victimise the complainant’.

Likewise the case of Allen v Independent Newspapers [2002] ELR 132 was cited apparently as authority for the proposition that failure to invoke the grievance policy may not be detrimental to a complainant’s case. However, even the complainant’s summary of that case noted that;

‘The EAT found that the complainant had brought a number of matters to the attention of the respondent throughout her employment. The Tribunal held that it was reasonable in the circumstances for the complainant to have lost faith in the way the respondent would handle her issues, in light of their previous approach to her complaints’.

But as the facts in this case show, the HR department responded very positively to the January informal meeting and also to the August grievance, as did his supervisor on learning of the excessive phone calls. There was no basis for the complainant to have ‘lost faith’ in how the respondent would handle the issues.

None of the key facts grounding these successful cases of constructive dismissal are present in the current case.

In particular, in respect of one of the core complaints; the actions of the company director and his wife in demanding the complainant’s services at their home, on the two occasions when he brought this to attention, first to his supervisor and latterly to the HR department a remedy was immediately offered.

It is hard to disagree with the respondent’s submission that the complainant was on ‘an unwavering course towards leaving’ regardless of any steps it took.

I must conclude that, on the facts of this case, the complainant had insufficient, indeed very little basis for the termination of his contract of employment and that his stated reasons for doing so cannot be attributed to any acts or omissions on the part of the respondent, which acted reasonably, and on the basis of the information available to it at all stages.

Regarding the claim under section 7 of the Terms of Employment (Information) Act, 1994 the complainant’s job remained the same and no obligation fell on the employer to modify the statement of Terms of Employment. No evidence was offered of such material change as would trigger the notification requirements of the Act.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have fully considered all the relevant evidence, oral and written that was laid before me before, and in the course of the hearing.

The complainant has failed to make out a case that he was constructively dismissed and I dismiss the complaint.

I also dismiss the complaint under the section 7 of the Terms of Employment (Information) Act, 1994

Dated:   19 May 2016