ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001879

Complaint for Resolution:

Date of Adjudication Hearings: 11 April, 2016 and  31 August, 2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint to 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. The case ran over two days in April and August 2016. The case was postponed due to the complainant’s sick leave in July 2016. The claim before me is one of constructive dismissal.

Complainant’s Oral Submission and Presentation:

The complainant began work as a Health and Safety advisor /manager at the Respondent leisure centre on 23 July 2012. He had been hired initially on the Job Bridge Scheme which subsumed into direct employment .He had a 22 year record of employment across a broad spectrum of construction, manufacturing and Health and Safety. He began to experience difficulties with the General Manager (Mr GM), shortly after joining.

He claimed that he was subjected to bullying, harassment, and was unfairly targeted by Mr GM through the use of repeated foul and abusive language .He left employment on 20 November, 2015 as he felt he had no choice outside resignation to protect his health as Mr GM was the person in charge and there was no Human Resource Department available to him.

On March 23 2013, the Centre was preparing to host a Health and Safety Conference. Mr GM met with the complainant and Mr F, Marketing manager .He asked the complainant “How many “effing “attendees were expected and whether it was “effing 48 or 55?” He reminded the complainant that “If it went tits up, it comes down on me “.The complainant submitted that he was very shocked as he had never in 20 years been addressed like this. He recalled that he felt totally undermined but didn’t take up the matter. He recalled a colleague Mr F tipping him under the table .This was the start of prolonged series of abusive situations which he experienced at the centre.

The complainant expressed a difficulty in getting a response from Mr GM to emails he sent to him.

In or around March 24, 2015, the complainant attended the regular management meeting. Mr GM directed foul and abusive language towards him over a 4-6 minute period. The subject matter concerned emails and resulted in Mr GM issuing a directive to the complainant. “If I don’t answer emails, you come in here and make me answer “The meeting was also attended by 5 other colleagues and the complainant was very hurt at being singled out in this fashion. He undertook to look for other work as he was told that his job was on the line.

He attended for interview for another position. He recalled feeling very angry and began to have panic attacks.

On Monday, July 7^th, the complainant experienced further foul language from Mr GM in relation to issues arising from the installation of a particular bench. Ms A, Hydro therapist had undertaken a risk assessment as when the bench was fully extended there was no room for a wheelchair. He checked the bench. It was not suitable for use However, later; the complainant raised an issue with the Physio therapy manager by email and was accused by Mr GM of completing a paper trail of emails. This troubled the complainant as he was aware of the far reaching powers of the Health and Safety Authority in the face of an accident and he became stressed. He was fatigued, wasn’t sleeping and had back pain. He also developed migraine. He stated that his back pain had disappeared once he left this employment.

In November 2015, the complainant was on sick leave due to back problems .The centre had done well at National Awards in Health and Safety and Mr GM wanted to erect banners to acknowledge the fantastic achievements for the third year running. These had been organised by Mr F while the complainant was on sick leave. When the complainant returned to work, he had to address a project where men were working on the roof of the centre in gale force winds without permits or risk assessments. He stopped the work immediately.

The complainant worked late into the night on November 20 in the company of Mr F and Mr DM2 to assist in the preparation for the erection of the banners. There was a malfunction with the erecting equipment and the process had to be abandoned for the night around 1 am .Barriers was placed around the erecting equipment and it remained in a corner.

The next morning the complainant was contacted by Ms DM1, who told the complainant that Mr GM was not happy, as there was no barrier around the equipment and children were swimming at the centre and a risk existed.   The complainant submitted that he was aggrieved as he was not part of the preparation team for this exercise and he felt that he was again wrongly targeted.

He received an email from Mr GM which referenced a previous fatality in a neighbouring facility However; in that case, the banksman was not qualified. The complainant submitted that “ everything got on top of him “ He had commenced counselling and minor tranquiliser medication .He felt very down , he was aware of his mortgage and his forthcoming marriage and felt disrespected by Mr GM . The complainant read out an excerpt of the respondent Bullying and harassment Policy. He contended that he had raised the issue, but it had fallen on deaf ears. He notified Mr GM of his intention to resign, giving one months notice.

The complainant asked the hearing to take account of the positive influence that his arrival had on the company. Accidents had reduced and awards were achieved .He suffered stress from July 2012 to November 2015. He suffered migraine for 13 months. He said that he was too embarrassed to go to a Doctor before he left employment.

He submitted that he did not take the decision to leave employment lightly, he had habitually raised the issue with Mr GM, but the negative behaviour was repeated. He was reviewed by his GP on November 23, who recommended that he cease working and he tendered his resignation, which was accepted by the respondent.

In the course of cross examination, Counsel for the respondent put to the complainant that he had not submitted medical certs linked to the incidents complained of up until November 23^rd.The complainant responded by confirming that he had not brought his medical condition to the attention of the Leisure centre but he was clear that MR GM knew all about it. He had told Mr GM face to face that he “was not taking that crap “in the presence of witnesses in.

The complainant denied that he had a bad temper. He confirmed that the Health and Safety Conference in 2013 had made a two thousand euro profit, when others had flopped .He related that he had not spoken to anyone in authority on his unease. He had , however discussed it with a Duty Manager but felt that he couldn’t put the complaint in writing or formalise it as Mr GM and the boss were the same people .He submitted that the centre was a dictatorship and “ a complaint could have been buried “

He disputed that bringing the issue to the attention of the board of management was a veritable option, seeing as that option was not provided for in the company procedures and “ he would have been out the gap “. He had not taken the option of referring the matter to the Health and Safety Authority.

The complainant sought to set the context and background of the March 24^th, 2015 meeting as 13 of his emails had been ignored by Mr GM. He denied that he had raised his voice when the question of clearing the CC TV room was discussed .He recalled that Mr GM had initiated an unprovoked attack on him and he formed the opinion that he wasn’t wanted at the company .He tried to get out but the Health and Safety Industry was in crisis. He confirmed that there was nothing in writing on the issues.

He denied that he was the aggressor rather than Mr GM, and submitted that he did not have difficulty in his school or work life. He denied having coffee with Mr GM in the aftermath of the meeting regarding the CC TV room.

He had commenced working for another company, but would much have preferred to stay on at the centre. He described it as a dysfunctional place to work in.

The complainant reiterated that he had not been informed about problems with the bench in July 2015.He was concerned that the continued use of the blue bench was an issue.

In response to questions on the ongoing evidence of support from Mr Gm in relation to time off for medical appointments, he acknowledged the support, but qualified his response by stating that he had “letters from Consultants 95% of the time and that was why he let me go”.

He recalled receiving the third award on behalf of the Centre as the National Health and Safety awards.

In relation to the thwarted attempt to raise the banners in November, 2015, the complainant stated that a plan was in place to address the malfunction of equipment the following day .He denied being defensive when Mr GM sought to point out the risks to the enterprise .He had stayed at work until 1 am and did not get home until 2 am. He received a text from the Duty Manager saying that Mr GM was not happy with the stalled equipment .He said that it was not his responsibility. The complainant confirmed that he had told the truth about the incident.

Counsel for the respondent put to the complainant that Mr GM was entitled to question matters, The complainant referred back to Tuesday November 17^th when 50 mile an hour winds had shut the city down and he was compelled to call a team off the roof when, he discovered an absence of approved paper work .He stated that Health and Safety was practiced subjectively.

Counsel addressed the complainant on why the pro-offered meeting of the following Monday, November, Was not taken up by him? The respondent had not been afforded an opportunity to discuss issues with him.

The complainant responded by stating that the email from Mr GM was in essence “ the last straw” He had discussed his concerns with his parents and Mr F and he knew that he had had enough . He confirmed that he did visit the centre on the following Tuesday to print out pre set exam papers for a neighbouring University .He confirmed that he had emailed staff and it was meant solely for staff . He understood that he had a great relationship with staff and was actively engaged with them on social activities, attending BBQ, NFL games in London and nights out every two to three months. He denied that he had been unreasonable in his resignation.

The complainant stated that he was sick but began to feel better once he left. He had continued with counselling, but was unable to look for work. He was granted social welfare in the form of illness benefit .He had commenced work with a construction company in April 2016.

In response to the complainants own solicitors questions, he stated that the abuse he suffered was known by others at the centre.

In response to the adjudicator’s questions, the complainant confirmed that he had undertaken a job Bridge Programme with the respondent before commencing in his current role. He did not receive induction, nor was he furnished with a job description. He denied that he had ever had an argument with Mr GM. He had lost weight from 90 kg to 73 kg. He had always submitted his certs to Mr GM but had not attended Occupational Health department.

On the second day of the hearing, the complainant submitted a number of points raised by counsel in the context of cross examination:

He confirmed that he was paid sick leave following the intervention of Mr GM in 2014.

He confirmed that he had rejected the verbal abuse from Mr GM.

His resignation was not an over reaction.

His time at the centre had affected both his mental and physical health .He kept a lot of it to him and it was a very difficult time in his life .No one can understand the effect of other person’s words on you.

Mr GM broke the contract in terms of abuse. The claim for constructive dismissal was affirmed.

In closing, Solicitor for the complainant stated that he was a conscientious worker, who felt stressed and had placed his employer on notice of that stress. The complainant kept things to himself most of the time as he could not identify a proper path to raise the issues given the authority of Mr GM at the centre. Medical evidence supported the stress.

Respondent’s Submission and Presentation:

The respondent disputed the claim for constructive dismissal.

The respondent submitted that the complainant commenced work with the respondent as Health and Safety Manager on 27 July, 2012. The respondent business is a leisure centre with 42 full time and 60 part time and seasonal staff. The respondent has achieved external accreditation in management systems and is committed to providing a safe place to work for its employees.

The respondent submitted that the company Harassment and Bullying Policy was contained on page 35 of the staff handbook and was accompanied by the grievance procedure on page 40 of the book .Neither of these procedures was invoked by the complainant prior to his resignation from employment on November, 20, 2015. The complainant’s email of resignation is dated 21 November.

The respondent wished the hearing to note that it was shocked by the allegations submitted by the complainant as it had not been on notice of any of the issues prior to the complainant’s resignation. The complainant had been treated respectfully by the respondent. At no stage was his employment under threat . On October 2, 2015, the complainant and Mr GM attended a National awards ceremony in Galway. The complainant was nominated to accept the award on behalf of the respondent by Mr GM. the respondent contended that this demonstrated the good working relationship between the respondent and the complainant and detracted from any threat to the complainant.

The respondent submitted that the complainant had extensive periods of sick leave in 2013/2014 due to lower back pain. He was supported throughout this period by Mr GM who permitted him to attend medical appointments during working hours and he received paid sick leave. The respondent was not made aware of a work related stress diagnosis in advance of the complainant’s email of November 23, 2015

“ I am giving you notice of my intention to leave employment as of today ……….I am just out of the doctors and he has me out with workplace stress for at least a month. I will never have to work as an employee of ……X... again “

The respondent disputed that the events complained of by the complainant were directed at him. Instead, they contended that the respondent had acted reasonably throughout the interactions and in accordance with legitimate management authority.

The respondent submitted the authorities of

Berber V Dunnes Stores [2009] 20 ELR 61

Mc Greevy v Ulster Bank, UD 962/2009

In support of their contention that the complainants resignation was both unreasonable and objectionable. The respondent submitted that the actions of the respondent did not meet the threshold required for constructive dismissal as set down in section 1(1) (b) of the Unfair Dismissals Acts 1997-2007 on contract and/or reasonableness test. The respondent argued strongly that the respondent kept the door open for the complainant to discuss his issues inclusive of the invitation extended to attend the November 23^rd meeting.

They contended that the circumstances of the case mirrored the EAT decision in Courtney V Chartered association of Certified Accounts, UD 270/2003. The Adjudicators attention was drawn to Kirwan V Primark, UD 396 /1988, where an employee was criticised for failing to engage with the grievance procedure and a claim for constructive dismissal did not succeed.

The respondent placed further reliance on Hickey V Bloomfield House Hotel, UD 384/2012, where the complainant had not permitted the respondent to explore her issues prior to resignation. The respondent contended that the complainant resigned his position and constructive dismissal had not occurred.

Witness Evidence:

1 Mr PM (Physiotherapy Manager)

He gave evidence that he had worked at the centre for three years and described a collaborative relationship with his line manager , Mr GM, whom he described as “ seeks opinions and gives advice “ . He submitted that the clinic was thriving.

He referred to the installation of an unsuitable bench which he understood had arrived while Mr GM was in South Africa. He was clear that Mr GM, the complainant and he, himself, agreed on its unsuitability. He recalled that Mr GM’s demeanour was unhappy, as the client attendances couldn’t be risked. He described the meeting as purposeful. He did not recall hearing expletives or any reference to “fucking cowboys”

He understood that a process error had occurred .He was not aware of health and safety breaches at the centre and he submitted that if he identified a problem in the course of his work, he found Mr GM to be supportive. He had not seen the letter A7……

During cross examination, Mr PM confirmed that the purchase order for the bench was raised by a Mr BD. The need for the second bench was generated as service grew. Mr PM confirmed that he forwarded the email of Mr GM and he understood that Mr GM was to engage with Occupational Therapy to resolve the matter. The issue of the bench should not have happened

2 Mr F, Marketing Manager

Mr F shared an office with the complainant and had worked for the respondent from 2011.He described his relationship with Mr GM as being very good and that he was a fair boss. He had never seen Mr GM display foul or abusive language towards the complainant.

He recalled the March 2013 meeting on the preparation for a conference. He recalled a discrepancy in the delegate count between the actual and what the complainant asserted. He understood that Mr GMs demeanour was informed by merely wanting to know the real figures .He did not recall Mr GM placing pressure on the complainant. He confirmed that he had “tipped” the complainant as he had predicted a “red mist “as the conversation was reaching a point of escalation. He described the complainant’s interaction with Mr GM as defensive.

Mr F was aware that the complainant was looking for other jobs but he had never heard him say that he was unhappy with Mr GM or heard that he was being bullied by him. He stated that the complainant “flip flopped “on his opinion of the job, and his opinion changed on a regular basis.

He recalled the events around the planned erection of the banners in November 2015; He sent an email to Mr GM at 01.07 hrs on 21 November in relation to the malfunction of equipment. He met up with the complainant the next day and noted his frustration when checked by Mr GM. He understood that the complainant was frustrated and that he rang the Duty Manager to confirm that the matter was outside their control .He spent the afternoon watching Rugby, but had a back and forth contact from the complainant between 4pm and 6pm. He stated that a 5 minute meeting would have”” sorted out everything “. The complainant told him that he was going to resign and there was no going back on it. Mr F was not surprised by the resignation, but he was shocked that he went through with it.

He recalled that both Mr GM and the complainant had occasional difference of opinions but the complainant did not appear to have a difficulty walking into his office if Mr GM had not responded to email. He denied that he had a volatile personality but rather was opinionated and said what he wanted. He adopted a defensive reaction at times.

During cross examination, he reaffirmed the defensive position adopted by the complainant with Mr GM .He denied that he had shown a 4 page email drafted by the complainant to his father on the afternoon of November 21. He, himself had proof read it and checked the grammar. He denied that there was a culture of fear at the centre and confirmed that there was an open door style of management.

3 Ms HPM (High Performance Manager)

Ms HPM had worked at the centre for 15 years, the last two as High Performance Manager .She recalled a review meeting that occurred three years ago, The subject matter related to accidents and the complainant was following through on an action point .He skipped through an incident which had involved a child slipping during lessons and she referred him back to the issue.

After the meeting the complainant approached Ms HPM and accused her of undermining him in front of a colleague, Mr DM2. Ms HPM was very shocked as he approached her right into her face .He apologised two days later but she found his demeanour to be aggressive.

She was present at the meeting of March 24, 2015. Sports equipment was in the electrical room. She recalled the complainant stating “I am not taking that crap “Ms HPM felt responsible for the wrongly placed equipment but the complainant “kicked off and reacted “and was heated and defensive. She found his behaviour unusual. She recalled Mr GM asking “Can I not ask these questions in my own office?” The event stood out as it was not a common occurrence. She saw the complainant and Mr GM having coffee afterwards.

She was not aware that the complainant had not complained of being bullied nor had she witnessed foul or abusive language from Mr GM. She stated that she wouldn’t have worked at the centre for 15 years unless there was mutual respect. She heard of the complainant’s resignation on Monday and honestly felt that it was the only outcome for the complainant as she contended that he would have wanted to win that battle. Open conversation was permitted at the centre.

During cross examination, Ms HPM recalled that her recollection of the complainants aggression towards her coincided with the first meeting with the Solicitors. In response to a question asked by the complainant’s solicitors on whether the question on CC TV was directed at the complainant in the March meeting, she replied that it was directed at the table.

She recalled that the complainant had introduced EU standards to the centre, which was positive.

4 Mr DM 1, Duty Manager 1

He describe a 15 year period as duty manager, he managed rosters and didn’t have much contact with the complainant. He had never seen Mr GM display foul or abusive language to any employee. He recalled the meeting of March 24, 2015. He saw the complainant rise upwards in response to numerous emails sent to Mr GM. The question in relation to cleaning out the room was directed to everyone and Mr DM 1 thought it was his fault too. He confirmed that he heard the complainant state that “I am not taking this crap “He raised his voice and was frustrated. There was no mention of the complainants job being on the line .He recalled the GM stating that they were in his office and moved on with the meeting.

Mr DM 1 confirmed that he was proud about the October awards and that the complainant knew his job.

He recalled that he was present three years ago when the complainant had approached Ms HPM after a management meeting in an angry and accusatory fashion.

He recalled that Mr GM was the fairest person he had come across .He allowed choice.

During cross examination, he confirmed that he had told the complainant to calm down following the incident with Ms HPM .His demeanour was agitated and his finger went up.

5 Mr M, Maintenance Officer.

He commenced work at the centre 4.5 years ago, three weeks after Mr F and the complainant .He described Mr Gm as “brilliant”. He had not witnessed foul language from Mr GM. He attended one meeting with the complainant .He did not normally attend management meetings. Mr GM asked questions at the outset and he observed the complainant becoming defensive. He looked around thinking is this normal? He did not recall a mention of the complainant’s job being on the line.

He confirmed that he asked the complainant after the meeting whether this was a normal meeting, as he was shocked at how the complainant “came back “at the Boss. He was aware that the complainant was looking for other jobs. He was shocked when he heard of his resignation .He knew he had a back problem and there had been reference to a hip replacement .He denied that a culture of fear existed at the centre but confirmed that the complainant had a more volatile personality than him .He was not aware of complaints of bullying .

In response to questions, he confirmed that the question on the CC TV room was a general question rather than being directed at the complainant.

5 Mr DM2, Duty Manager.

He had worked at the centre for 16 years .He found Mr GM tough as he wants things done .He wants staff to come with ideas. He never experienced foul language. He attended the 24 March meeting. He heard Mr GM state that “I am allowed to speak in my own office “The complainant was aggressive. The question posed was fair as equipment shouldn’t have been in the CC TV room. He heard Mr DM 1 tell the complainant to calm down. He observed that Ms HPM was shocked .He contended that the complainant was opinionated and slightly aggressive at the meeting.

He stated that he was not afraid of Mr GM, and denied that culture of fear existed. He submitted that Mr GM had a strong personality and was a strong manager.

He recalled the night of Nov 20, as he was on duty. Together with Mr F and the complainant they endeavoured to action the preparations but could not progress, following the malfunction of equipment. He reflected that he should have placed more barriers around the stalled equipment .He was standing beside Mr F when he sent the status report by email to Mr GM at 01.07 hrs. He was cc’d on further correspondence between Mr GM and the complainant. He heard of the complainants resignation by Monday, November 23^rd. He contended that it was a nuclear step to resign without discussion. He was to be on duty on the Monday and contended that they could have met on the issue.

During cross examination, he reaffirmed that he had not witnessed foul and abusive language. He contended that the “tough” manager description attributed to Mr GM manifested as him wanting the highest standard by telling you in a normal conversation what he wants. He had never heard Mr GM raise his voice. He didn’t recall the paper work surrounding the roof repair earlier in the week.

6. Mr GM, General Manager.

Mr GM had worked at the centre for 15 years and had overseen a growth in staff from 19 to 120 employees .It was important for him to pay staff 2 or 3 euro extra per hour to ensure recruitment of good staff . The centre provided a group pension and sick benefit.

As General Manager, he had attended seminars in Health and Safety and saw a need for the expertise. The centre was financially stand alone and was compelled to income generate separate to the neighbouring University .He made the decision to bring in a formalised Health and Safety position via Job Bridge initially which in turn became a permanent position for the complainant . He understood that he had a good working relationship with the complainant and the centre achieved accreditation and Safety awards in 2013, 2014, and 2015. He had a sore back in 2015 and was happy to nominate the complainant to accept the award in Galway in 2015.

He was aware that the complainant suffered back problems and understood that he as a Boss accommodated him. At one stage, he remembered Mr DM1 checked him saying that he accommodated the complainant more than he should .There was no mention of stress or counselling.

Mr GM stated that he was couldn’t believe where the allegation s were coming from, as he was not an aggressive person.

He referred to the March 2013 issue in preparation for the conference and disputed the complainant’s recollection of events. He submitted that he was running a business and wouldn’t get exercised over 2-3 delegates as he took a global picture, the conference was about public profile and” not pounds, shilling and pence “. The complainant had not approached him regarding anything being wrong.

He submitted that he was at the top of the organisation and quality standards were driven by him long before the appointment of the Health and Safety Manager .The centre had been commended on the quality of records retained on Incidents and accidents and MR GM disputed that he could have fostered this culture if he was hiding emails as alleged by the complainant.

He recalled the management meeting of March 2015, where the issue of the CC TV room was raised. Everyone had a report to offer. He had brought up the issue of storage of non electrical equipment several times before. The complainant became aggressive a raised his voice towards him, Mr GM remained calm.

He disputed threatening the complainant’s job and tried to reason by stating that he had to ask questions. He sought to chat out the incident over coffee with the complainant by advising him against taking questions too personally.

Mr GM was not aware of the men on the roof in high winds issue. He confirmed that the complainant was correct in his management of the issue and he was charged with the investigation.

He recalled the morning of November 21st, he attended the centre to address an ongoing back problem and he heard from the duty manager on duty that Mr DM 2 had informed her that the equipment commissioned to erect the banners had broken down. He questioned the safety /security and asked her to find out more. He did not ask her to make contact with Health and Safety .He discovered the email from Mr F around lunch time and he sent his response to the three employees involved: Mr F, the complainant and Mr DM 2.He described alarm bells triggered in relation to operational issues of supervision and hazards .He made his mind up to safeguard the centre and place everything on hold pending a review on the following Monday. He drew an analogy to the Judges Comments on a workplace incident at a neighbouring facility.

He was disappointed to receive the complainant’s resignation but noted that it followed a pattern of aggression and defensiveness. He accepted the notice, but did nothing as he thought he would be in on Monday and he planned to review matters on Monday morning.

He denied treating the complainant in a foul and abusive manner in the aftermath of the “ bench “ issue in July 2015.Mr GM merely sought solutions. The Occupational Therapist reviewed the issue as requested by Mr GM.

At 12 noon on Monday, the Accountant and Pay Roll received an email from the complainant stating that he was on a day’s annual leave. This was followed by a second email claiming 1 months notice in lieu.

Mr GM was clear that he was never made aware of issues by the complainant and he understood that they had a good working relationship.

During cross examination, he submitted that the issues raised by the complainant were total lies, he had never treated him badly and they had a good working relationship .He didn’t generate a cause for the Red Mist. He was very accommodating with his sick leave via time in lieu or additional holidays.

He contended that things didn’t always go right, if this happened; the staff habitually sit down and talk about it. If performance issues arose, they were dealt with through the Duty Manager system. He denied that the complainant was questioned directly on the CC TV Room issue. He reaffirmed that he had sought him out to advise against taking questions too personally. He was “too hot headed “

He apologised for the reference to “high horse “statement in the follow up email on November 21 .He did not seek to belittle the complainant.

When asked about the Bullying Policy vis a vis the General manager being the alleged perpetrator, he stated that the matter could have been placed before the Board of management , which met quarterly .This had happened in the past .While, Mr GM accepted that his detail was not clearly outlined in the policy , any employee would know .

Mr GM assumed that the complainant’s aggressive manner had been resolved and there were no live issues at the time of his resignation .He referred the case to the Board of management on November 23.

In closing, Counsel for the respondent submitted that there credibility issues in relation to the complainants’ evidence. The 5 witnesses had testified to having a good relationship with Mr GM and crucially that in the March 2015 meeting ,all were clear that the complainant was the aggressor .The complainant had not raised issue prior to his termination of employment and the respondent strongly disputed that he had nowhere to go. The option of an independent investigation remained open to him. The complainant acknowledged that he kept matters to himself and did not confide in Mr F, with whom he shared the office. The complainant had been on sick leave for 6 to 7 months following leaving employment. This was followed by a period of self employment, therefore he had no loss.

Issues for Decision:

I must consider whether because of the respondents conduct, the complainant was entitled to terminate his contract or whether it was reasonable for him to do so?

Decision:

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.

Constructive Dismissal is not specifically mentioned in the Unfair Dismissals legislation. The definition relied on can, however, be found in Section 1 of the Act:

1 (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer

I must, therefore consider whether because of the respondents conduct; the complainant was entitled to terminate his contract or whether it was reasonable for him to do so?

Firstly, I wish to analyse the evidence of the parties.

The complainant submitted a very profound account of his experience at the respondent Leisure Centre. It is clear that he enjoyed his job and made a very effective contribution to the success of the centre. However, he held a very strong belief that he had been repeatedly targeted by Mr GM by way of foul and abusive language and asked that I consider that the conduct of the respondent amounted to grounds for constructive dismissal, as it was impossible for him to continue at the company.

The complainant did not refer to his passage to the current position via Job Bridge in his evidence. This emerged following cross examination. Neither did he refer to any issue which may have arisen during his probation or through the performance management system.

The complainant chose to present his case without witnesses and was, at times critical of the input of the respondent’s witnesses. I felt obliged to remind the complainant that he was also entitled to provide witnesses to the hearing.

A central component of the complainant’s evidence rested on believing that nobody at the centre would hear his issues as power was held centrally by the General Manager and this was an absolute power, which would not bend to procedures on Bullying and Harassment. The complainant asserted that he believed that he would face sanction if he went higher than the local power base.

I have reviewed the document presented by the respondent on the complainant’s sick leave. This document was not disputed by the complainant. The sick leave was recorded episodically from November 2013 until November 2015 and had a number of reasons documented

1 Unwell

2 Medical conditions

3 Lower Back Pains

4 Chest Infections

5 Exploratory Investigations

6 Recurring severe lower back pain

Given the complainants reliance on the omnipresence of physical symptoms of stress in the form of migraine, fatigue, panic attacks and the recourse to counselling to support his condition. I could not establish a connection between the medical certificates and the conditions raised at the hearing outside the brief reference to “workplace stress “ on Dr Bs letter dated November 23 , and the complainants resignation of the same date . This post-dated the resignation. I am mindful that the complainant returned to work post two weeks of sick leave on November 15 citing a combination of lower back pain and a unspecified medical condition .

I accept that the complainant freely acknowledged that he kept his difficulties to himself most of the time , however , given the extended two year time span covering medical conditions , I would have expected to have been in a position to pick up a connection in this part of the evidence . I did inquire whether the Centre had considered an Occupational Health referral and noted that this was not triggered as the conditions were backed up by Consultant and Hospital appointments. Occupational l Health is frequently a good gateway to exploring underlying conditions and formulating a way forward for both parties.

I have carefully considered the complainants evidence on the conduct of the respondent witnessed by him over a 3 year period which was based largely on two structured meetings March 2013 and 2015 and three operational events July and November 2015. I listened carefully to the evidence of the 6 witnesses and in particular Mr F and Mr M on their analytical accounts of the meetings in 2013 and 2015.

I have also noted the sequence of events which led directly to the complainant’s first notification of his resignation. Mr GM sent an email to Mr F at 13.44 hrs on November 21, stating that he was not happy with the status of the stalled equipment. Almost three hours later, the complainant responded to this email at 16.34 as it appears he was copied in on the email to Mr F.

Mr GM responded at 17.16 hrs copying his response to Mr F and Mr DM 2 suggesting a group meeting the following Monday. The complainant communicated his dissatisfaction with the email and his resignation at 18.43 hrs that same evening. Later that evening at 20.59 hrs, he informed payroll that he was on annual leave on the following Monday. On November 23^rd, at 13.00hrs, he tendered his immediate resignation, yet giving one months notice on the basis of workplace stress.

There are a number of different messages contained in these three communique.

I also reflected on the evidence submitted on the conjoint working that led to the repeated successes at National level. I note that the complainant submitted that the last ceremony in 2015 where he had accepted the award for the centre was attended by both Mr GM and the complainant and those they had got on fine there.

I have noted that the complainant had never been met by this type of situation in his 22 year work record.

Respondent:

The respondent submitted an extremely robust case that the events complained of by the complainant did not happen in the way they were reported. The evidence adduced pointed to a series of operational matters which had allegedly been taken out of context and distorted by the complainant. This evidence was interspersed in the evidence of Ms HPM on an intimidating counter approach by the complainant, which frightened her.

I found the evidence of Mr F to be clear and cogent; he knew the complainant well and could easily identify a variation in his demeanour. I accept that Mr F watched out for the complainant and probably knew him best given their mutual start times and shared office. I was particularly drawn to his analysis of the aftermath of the stalled equipment as a matter that he felt could be resolved in a 5 minute meeting.

I found that the evidence of the witnesses pointed to a very busy work environment with complex and competing demands. I heard repeated descriptions of good team work and open styles of communication in pursuance of high performance. I heard the witnesses express a concern regarding their perception that the complainant had a propensity to envelope into a “ red mist “ in the event of questions he regarded as challenging him in the March 2013 and March 2015 meetings. I was struck, however, that the respondent witnesses all referred to these questions as global rather than individually designed.

I was also struck by the lea way given to the complainant in support of his medical conditions and I note Mr DM1s criticism of that lea way. That suggests to me at least, that the complainant was supported in his illnesses.

I note that the respondent was clear that they were not on notice of the complainant’s complaints on Bullying, Harassment or psychological distress until after his resignation. I note in particular the evidence of Mr GM in this regard, who clearly understood that the parties had a good working relationship.

I was further struck by respondent submission that the complainant was open to seek an investigation as there was provision for that in the staff handbook. The respondent also pointed to the Health and Safety Authority as a possible point of contact for the complainant.

I have also reflected on the evidence given by Mr GM that the enormity of the case had been very hard for him as he continued to strive to lead his Team and retain standards .I note that following my questions to him on the three different messages surrounding the submission of the resignation, he accepted the first one as it was qualified by the “non negotiable “phrase.

I was also struck by the fact that the respondent clearly acknowledged the positive benefits to the Centre which were generated by the complainant.

Case Law

Counsel for the respondent drew my attention to the test for Constructive Dismissal set down by the Supreme Court in the case of wrongful dismissal in Berber V Dunnes Stores [2009] 20 ELR61

1. The test is objective.

2. The test requires that the conduct of both the employer and the employee be considered.

3. The conduct of the parties as a whole and the cumulative effect must be looked at.

4. 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.

I have no difficulty in following this test and adding relevant case law as I see applicable or relevant.

I have commenced my analysis of both parties conduct and I will now conclude the analysis. I find that the complainant got a great opportunity to contribute to the successful Leisure Centre via the Job Bridge Programme in 2011. It is clear that his position was a success.

I find however, that there was some opaqueness surrounding the integration of his role in the Team. It was unclear who deputised for him when he was ill and what if any formal handover arrangements post dated these periods? It seems to me that at least two of the events complained of had their genesis in post sick leave issues. By this, I mean, the episode of cessation of roof work and the preparation for the banners.

. I go back to the question of who was going to ensure that the CC TV room was cleared in March 2015 and all present seemed to hold a private view that they held some modicum of blame, yet it was the complainant alone who initiated a confrontational dialogue. He took on the lion’s share of responsibility for advocacy , without perhaps needing to

.Group dynamics is a learned art and it may not always be wise to be the first speaker . I find that the outcome of the exchanges submitted to the hearing remained with the complainant long after everyone else had concluded their parts. He was acknowledged as conscientious by the company and I concur with this. However, he may have allowed this zealousness to derail him somewhat.

Having examined the conduct of the parties, I find that the respondent led strenuously on operational matters. I conclude, based on the evidence before me that legitimate management authority was exercised throughout the incidents. I find that the complainant took on the role of questioner and ended up in a rumination situation which in turn caused him to feel ill. I must accept the evidence of the respondent that the complainant did not establish a causal connection between his physical illnesses complained and workplace stress during the life time of his contract. I must also accept the evidence of the respondent that at the time of his termination of employment, the complainant had not placed the respondent on notice at any level of the distress that he was suffering privately.

I can accept that he was embarrassed at how he found himself, however, I must remark on the idiom provided for in an earlier case Brady V Newman UD 330/1979,

“……an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him, so also must the employee behave “

I note that none of the meetings discussed by the parties were accompanied by minutes, therefore I have to rely on the recollection of the party’s .I find that I prefer the witnesses for the respondent on the context and background to the verbal exchanges referred to in March 2013 and March 2015.

I do not wish to diminish the complainant’s recollection only to remark that I find that it was open to him to raise the matters through some channels outside the centre based on his own peculiar knowledge of Health and Safety. These could be through his GP, occupational health, neighbouring HR dept., or ultimately the Health and Safety Authority, whose code of practice documents are very user friendly. I find his omission to raise these matters to be fatal to his claim. I cannot accept that he was afraid to do so.

In Barden v Lough Rynn Castle ltd UD/ 814/2015

The EAT determined in relation to a claim for constructive dismissal:

“The Tribunal has often explained the importance of following internal procedures before any resignation takes place in cases of this nature. One of the main reasons for this is that it is unfair for an employer to have to face such a claim without having the opportunity to rectify matters internally. However, in this case two Directors of the company were aware of the claimant’s complaints and also two other managers, DGM and FHM.

The Tribunal feels in those circumstances that the company should have insisted that a complaint be processed or allegations completely dropped. The claimant was clearly putting the respondent on notice and had clearly stated her difficulty in making a formal complaint against GM of the company”

I find that the respondent was not on notice of a formal complaint against Mr. GM and that the complainant kept it mostly to himself in this case.

This distinguishes the case from Murray v Rockabill Shellfish ltd [2012]23 ELR 331, where the complainant had a period of 6 months work related stress leave prior to resignation in June 2010, only when efforts to resolve issues vi a the complainants Solicitor had failed .

I continue to be influenced in the formulation of my decision by the mutually agreed reports of the positive demeanor of both parties at the award ceremony a little over a month before the complainant left. When asked during the course of the hearing, whether he had ever had an argument with Mr. GM? He said no.

I am, however uneasy on the sequence of events during the course of November 21-23. Mr. GM responded to Mr. F in his email and the complainant was a secondary party. Yet, the complainant was first to respond to the email, by doing so, he may have overlooked the opportunity to discuss the matter with the file on the following Monday with all parties involved.

I find that the three further communications submitted by the complainant to be inconsistent and irrational. Notice of resignation, followed by notice of annual leave, followed by notification of resignation and sick leave. I did press the respondent as to why this did not prompt an alternative management approach and I have to accept the response that the resignation first in time was accepted as it was pro offered as non negotiable.

The test for constructive dismissal places a very high bar before a complainant and this case is no different. The burden of proof rests on him. In Barry Relph V HSE [2016]27 ELR 268, the EAT determined that a case for constructive dismissal could not succeed when the complainant raised issues but did not specify a chosen course of action.

In this case, I have to conclude that issues were felt and reflected on by the complainant but were not raised with the respondent outside some isolated statements made by the complainant within the confines of meetings. By his omission to formalise his complaints, he left the respondent in the dark and without an opportunity to address or rectify matters. His hand written positive endorsement of his time spent working at the Centre circulated to staff members two days post his resignation , isolated the issue as one of interpersonal difficulty alone. I cannot accept that the complainant was curtailed by shortcomings in the company procedures. I engaged in an analysis of these policies and found sufficient space for an employee to seek help and support for the workplace issues raised at the hearing. There was no reason for him to be alone with his misgivings.

It is essential that a complainant does more than assert a perceived wrongdoing, it is reasonable to expect proof. Everyone is entitled to their good name and I find at the conclusion of this case that the case has taken a visible toll on both parties. The complainant has relaunched in his career and Mr. GM has continued to lead a high performing team. Both parties were keen to receive an outcome.

I find that based on the Objective Test in Berber, that the complainant had developed a personal difficulty in his interactions with Mr. GM. He had kept the enormity of this largely to himself and had not actioned a complaint or sought any other formal resolution mechanism.

Given, his experience in the world of work taken in tandem with his chosen Health and Safety specialty, I find the procedural containment surrounding this issue on behalf of the complainant to be unreasonable and unfair to the respondent. I cannot find evidence that the respondents conduct amounted to ample justification for the complainant’s decision to tender his resignation on the evening of November 21 and again on November 23^rd. The respondent was prepared to discuss the events of November 20 and November 21 with all parties involved and I find that a notice of a resignation with immediate effect was a disproportionate reaction to that simple invitation, which consequently served to curtail any chance of a mutually acceptable resolution within the life time of the contract.

I also find that the complainant may not have allocated sufficient time to considering the concept of the legitimate use of management authority and the reciprocally recognised appeals and counter appeal mechanisms when conflicts inevitably arise in that zone. In my view , the complainant would have benefitted from an advocate /representative to assist him within the lifetime of the contract .

Having considered the evidence adduced in this case, I must therefore, find that the claim for Constructive Dismissal has not succeeded.

Patsy Doyle, Adjudicator.

Dated:   7^th November 2016