UD616/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD616/2015

CLAIM OF:                                                       

Christopher McCallion                                                                                         

against

D&M Environmental Services Limited

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Ms. E. Daly BL

Members: Mr. D. Morrison

                 Ms. R. Kerrigan

heard this case in Letterkenny on 4^th July 2016 and 19^th October 2016

Representation:

_______________

Claimant:         Mr. Ciarán MacLochlainn, C.S. Kelly & Co., Solicitors, Market House, Buncrana, Co. Donegal

Respondent:     Mr. Frank Dorrian, P.A. Dorrian & Co., Solicitors, St. Anne’s Court, High Road, Letterkenny, Co. Donegal

Constructive dismissal was claimed. Bullying was denied. It was accepted that an induction booklet had been received but it was denied that the claimant had got a contract.

Claimant’s case:

Giving sworn testimony, the claimant said that he had been bullied by TM. The claimant said that he had joined the respondent from school and that his father still worked there.

The claimant worked as a helper on a bin lorry. He mentioned no problem until he was moved to working on skips in the respondent’s yard where the problems arose with TM, his manager.

The claimant complained that, after moving to the yard, he had been subjected to constant verbal abuse by TM. Every day he was called a stupid bastard. He told TM that he could not take it any more and that TM was bullying him. He got no explanation. It continued for nearly three years and was getting worse.

The claimant told JCJ (junior) he could not work with TM. JCJ said that he would get it sorted but he just drank tea with TM.

The claimant went to LC (who was JCJ’s wife) and said that he was making a complaint about his treatment. TM followed him to the office and shouted at him. LC said she would talk to JCJ. The claimant heard nothing. This was early in March 2015.

Every day there was an incident with TM. TM roared at him inciting him to hit him. TM said he would love the claimant to hit him. TM said he would get him sacked.

It carried on. The claimant and JCS (senior) had a “not bad” relationship. JCS said at some stage that he could not believe the claimant was still “f**king” here, that he was a businessman, that the claimant would never be one and that the claimant was “only a dog”. That was the first time the claimant had felt bullied by JCS. The claimant did not dispute that JCS had given him three thousand euro towards his first car.

The claimant said that he had unsuccessfully asked his father and CB (another employee of the respondent) to attend the Tribunal hearing.

In April (2015) the claimant had to use leverage on a machine. TM said that the claimant was not doing things right and that he did not know why the claimant was left with him. The claimant said that he would not take this any longer, that this was him “done”, that he could not take any more and to tell JCS. The claimant walked away and said that the respondent knew where it could find him.

The claimant rang the following week and spoke to LC. He had asked that his contract be sent out. LC had asked if all was all right and the claimant had said that it was.

The claimant said that his P45 “was the end of it”, he was twenty-five and had children to support. He sold the car, was in debt and paying maintenance for children. He “did not leave the job lightly”. He applied for new positions and was self-employed before finding work in England. He has now returned to a call centre job at home. He has had no difficulty working with other employers.

Under cross-examination, the claimant accepted that the respondent (staffed by some eighteen people) was checked and had a good record. Asked about the complaint form he had filled in for the Tribunal, the claimant was asked how he had forgotten to mention the abuse he alleged having received from JCS. The claimant replied that he had been in torment and that he had complained to JCJ, that he was not a solicitor, that he had made an informal complaint to LC and that he had been advised to give a brief complaint.

(At this point, the claimant’s representative interjected that the respondent could have asked for further information.)

It was put to the claimant that he had not complained before his informal complaint to LC. The claimant replied that he had told JCJ that he could not take it anymore. The claimant said that he had made a verbal complaint to JCJ but that JCJ and TM had drunk coffee together even though “all the yard knew” about TM abusing him.

It was put to the claimant that nobody had spoken to his dad because they did not want to embarrass him. The claimant replied that his dad valued his job and that the claimant had asked a few others to be witnesses

The claimant said that he had told LC and JCJ what he had been going through in the yard. The claimant denied having told LC that his complaint was informal. He had asked that something be done.

Asked to agree that he had made an informal complaint, the claimant replied that he needed a job and that he had two small children.

The claimant did not deny that he and TM had taken tea together. It was put to the claimant that LC had thought all had passed and that there had been a row on the day he left.

Questioned by the Tribunal, the claimant said that all had been good until 2012 when he was told of the change in his job.

Asked if anyone had been in earshot for the events of early 2015, the claimant said maybe CB.

The claimant said that the respondent had no written procedures. LC was the office manager and the transport manager.

The claimant confirmed that his relationship with TM had been bad. Asked about prior to 2012, the claimant said that they had not seen each other but it had escalated to the point where he could not take any more.

Asked if TM had been senior to him, the claimant replied that TM was “basically a foreman” who had instructed the claimant. JCJ had structured the work and was owner/boss. TM looked after the yard.

Asked how TM had reacted when the claimant had said about their having to work together, the claimant said that TM had known that the claimant was upset. The claimant had wanted action taken and had wanted somebody to have a word with TM. The claimant did not say he was okay when he was asked by LC. He was just distressed and he asked for the handbook/contract.

It was put to the claimant that LC disputed that TM was shouting at him. The claimant replied: “he was.”

Asked what TM had shouted, the claimant said that TM was blaming him, saying that the claimant would not do what he was told and was abusing the claimant on a daily basis.

Respondent’s case:

LC gave evidence of being unaware of any issues between both parties until the claimant came to her office saying he wanted to make a complaint of bullying against TM. She told him she would have a word with JC(junior) her husband. He later told her that he had a word with TM who said he wasn’t bullying the claimant just trying to get him to do his work. Nobody came back to her to say the situation was ongoing so she assumed all was ok.

While on holidays some two months later her husband rang home to check if everything was going okay, he was told by TM that the claimant had walked off the job. They decided to wait until their return from holidays but the claimant rang the following week asking for a copy of his contract/handbook. There was no contract in place but there was in induction booklet which was forwarded. LC rang him back to ask if everything was okay and was told it was. He later asked for his P45.

She felt that the respondent had been given no opportunity to deal with the issue. It was not something the company ever had to deal with prior to this. Asked if there was any written notes of the conversation with the claimant she said no, at first she thought he was joking. Asked if anybody went back to the claimant to advise him that TM had been spoken to she said “no”. She confirmed that TM had come into the office while the claimant was with her, asked what was he doing but denied he stopped the conversation or shouted.

JCJ senior told the Tribunal that the claimant had been around the yard since he was a child. He had a good relationship with him and the claimant could have come to him at any stage with any problem he had. JCJ said he was in the yard most days and seen nothing to indicate any bullying and he would definitely have seen it. He also added that he was very disappointed with the claimants suggestions that he had every said he was “only a dog”. That, he said was “total rubbish”.

TM gave evidence of every day work in the yard. He said he was the overseer and while there were flare ups every now and again and language could be colourful it was what happens in any yard. He told the Tribunal that on the day of the claimant’s departure he had showed him on two occasions what was required to repair the conveyer belt. TM had to get under the machine and the claimant put a crowbar under it and rise it for the rubber to go on. TM had to come out from under the machine because the claimant wasn’t even in the right position, he was in the wrong place all together and it wasn’t rocket science. He told him to “leave it”, someone else would have to do it later but did not call him a “stupid b……d”.

The claimant had already left the yard by the time he got out from under the machine and his car was gone. At some stage during the day he advised LC and JCJ junior who were on holidays. TM confirmed that he went to the office on the day that the claimant was making his complaint to LC, but said “ it was just to look for him as he was needed in the yard”. He said when JCJ junior spoke to him about bullying he told him he wasn’t bullying anyone and nothing else was said, he assumed it had all blown over. Asked if he had changed his ways he said that he wasn’t bullying so there was nothing to change.       

Determination:

The respondent’s induction booklet indicates that there is an anti-bullying policy within which there is a formal and an informal procedure. The employer submits that the claimant should have evoked the formal procedure prior to resigning his position and his failure to do so is fatal to his claim.

However the employer accepts that they never informed the claimant of the outcome of the informal process. This is despite the fact that they had decided that the bullying claim was unwarranted. The failure to inform him of the outcome of the complaint is fatal to this (otherwise good) defence because it left him in a position of limbo, not knowing if his complaint was upheld or not.

A complaint of bullying, once made, is like a ticking time-bomb in a workforce. It should be dealt with fully, thoroughly and swiftly. The process of investigation should be fair and transparent and the outcome should be communicated. This did not occur.

From that point onwards the claimant reasonably believed that his bullying complaint had been swept under the carpet and it was only a matter of time before another incident (however small) ignited the situation again.

When the final incident occurred in April 2015 the respondent had already two months knowledge of the complaint against TM. They were under an obligation to take active steps to enquire to the claimant’s well-being and had a duty of care to their employee.

The Tribunal is satisfied in all the circumstances that he was constructively dismissed from his employment and awards compensation in the sum of €11,000.00 under the Unfair Dismissals Acts 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)