ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000801a

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 29/06/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The complainant, a qualified carpenter, commenced work with the respondent, Coffin Manufacturers, in April 2007. He received no contract of employment until his solicitor looked for one in 2015. After approximately 6 months in employment the complainant had progressed to making coffins and usually, depending on available materials, would make between 15 and 20 in a day. Things began to change in 2009 when the respondent wanted the complainant to increase his workload and this, combined with being required to erect headstones in various graveyards and doing deliveries, caused the complainant considerable stress. He expressed his concerns to Mr MG Managing Director, but Mr MG demanded he continue with the same workload or that he would find someone else to do the job. As a result the complainant had to attend a doctor in July 2009 and he was prescribed anti depressants. He made the respondent aware of this development but the respondent demanded that he meet the same work load.

In 2011, while attempting to lift a large headstone, the complainant hurt his back and was off work for some time during which he submitted regular certificates from a chiropractor. The complainant alleges that Mr. MG said that he could not understand how it was possible for the complainant to hurt his back and was angry that he was not being cleared by the chiropractor to return to work. From the time the complainant returned to work he was singled out for humiliation. Mr MG constantly watched him and took every opportunity to shout at him in front of staff. On 16 Nov 2011 another member of staff placed a bale of timber in a wrong location and the complainant was blamed for doing this by Mr PMcG who shouted at him. They went to Ms MG’s office who shouted at that complainant and asked if he was handicapped. The complainant was so humiliated that he broke down in the office.

On the following day Mr MG called him to the office and said he was not happy with what he had said to the complainant the previous day. The complainant stated that he felt he was being bullied by Mr MG and other staff. Mr MG stated that this was a serious allegation and that the complainant had until 5.00 p.m. to make up his mind, and that any further conversations would be recorded by him. He further stated that the complainant was working to 70% of his ability and threatened to train another staff member to take over his position. The complainant went out sick the following day, the 18^th November 2011. His doctor witnessed his stress and told him to take at least a week off.

On his return from sick leave on 28^th Nov 2011, he received a letter from the respondent asking him to confirm if he was making a formal or informal complaint in relation to the bullying and harassment issue. On the following day the respondent called him into the office and demanded a response to which the complainant replied that he needed time to think and seek advice. The respondent questioned how he was able to drive a van when he was out sick. The complainant felt too intimidated to make a formal complaint and feared that the outcome would be that he would lose his job. When he went back to work he noticed that he was being constantly monitored on the CCTV. The respondent would call him into the office to give out about the number of steps he was taking on the floor to complete tasks and at other times he would come out to the work area and shout at him. This occurred on a daily basis.

The complainant’s work load increased continually. In March 2014 he again hurt his back and had to attend a Sports Therapist. She advised the respondent that the complainant should do less lifting but the respondent ignored the advice. At the end of 2014 the respondent arranged a Christmas party. The complainant advised Mr MG by text that he could not attend and in response received a number of angry texts and was confronted at work about the issue.

The situation came to a head in 2015 when Mr MG stated that he wanted 35 coffins a day done or he would replace or demote the complainant. The respondent introduced time sheets and wanted the complainant to account for every minute of the day. Only four of the twelve staff had time to fill them out but the complainant was singled out and attacked for not having completed them. On 2 Nov, Mr MG shouted at the complainant to fill out the timesheets. He went on to say that if he did not increase production he would be demoted. Feeling humiliated and distressed, the complainant was forced to go on indefinite sick leave from which he has not returned.

Respondent’s Submission and Presentation:

Preliminary issues

The respondent contends that the complainant has not been dismissed and points out that he continues to submit medical certificates and has not sought his p45 in writing.

Secondly, at the first hearing on 6^th April the Adjudicator gave the complainant one week in which to submit certain information. The complainant did not comply with this request within the required time frame.

Substantive case

The complainant commenced employment in April 2007 following his request to the company for short term employment when his previous employment ended suddenly. Towards the end of 2015 the company had been attempting to introduce production sheets. The complainant refused to co-operate saying he was not paid enough. When he was asked about the issue on 2 November he again stated that he wasn’t paid enough and left the office stating that he was going to the doctor for a cert. In mid November his solicitor contacted the respondent seeking various documents including the complainant’s contract and stating that h had been subject to intolerable intimidation culminating in considerable abuse on 2^nd Nov. The company immediately replied including the copies of the information requested with the exception of the contract of employment which the company committed to preparing immediately together with staff policies which would provide the complainant with procedures to deal with any work related issues. The company also refuted the allegations of intimidation and extended an invitation to the complainant to contact the company to allow them to deal with the matters raised. A reply was received on 30 Nov alleging that the complainant had been dismissed. Meanwhile, he continued to submit sick certs.

The complainant has never made any official complaint in relation to the conduct of his employer or any of his work colleagues. Therefore it is the view of the respondent that he never made any real attempt to resolve the work related issues he now says forced him to leave.

In response to the specific allegations the respondent made the following points;

It is acknowledged that the company failed to issue the required documentation to employees within the required timeframe.   This has since been rectified for all employees.

All employees received induction training on commencement, based on their qualifications and role within the company. The qualification which the complainant held was more than adequate.

The other work referred to by the complainant is exaggerated. On average he would have been asked to do deliveries 5 or 6 times per year.

The respondent was not made aware of the GP’s recommendations in 2009.

The respondent considered the recommendations of the chiropractor in 2011 and tried to facilitate him in carrying out lighter work for a period of time. The complainant’s decision to eat lunch in his van had more to do with his smoking habit that any attempt to isolate him.

The respondent attempted to deal with the incident that occurred on 16^th Nov 2011 between the complainant and another member of staff by calling a meeting at the end of which they both shook hands. The respondent did ask the complainant to clarify the allegations of bullying. The respondent refutes that he threatened to demote the complainant. Neither was he over supervised in any way. This matter was never pursued by the complainant.

The complainant stated that he was absent from 18 Nov 2011 to 28 Nov 2011 due to stress. His GP confirmed this in 2016. However, this is in contradiction to the medical cert supplied at the time which says he was absent due to an oral infection.

On the recurrence of the back injury in 2014 the complainant was again facilitated with lighter work.

The respondent denies that the texts sent in the context of the Christmas party incident were ‘angry’.

The expectation of making 35 coffins a day would be ridiculous and did not happen.

The complainant was asked to put his request for a P45 in writing which he did not do.

The complainant continues to send in medical certs.

The respondent is happy to facilitate a return to work for the complainant and has given a commitment to address the issues raised by him under the company procedures.

Most of the issues raised relate to the period up to December 2011 and following that period nothing of significance was raised until Dec 14. If issues were unresolved the respondent cannot understand how the complainant could work for a further three years before deciding he could not continue.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint under that Act.

Issues for Decision:

Whether the complainant has been unfairly dismissed and, if so, the appropriate remedy.

Whether there have been infringements of the Terms of Employment (Information) Act, 1994 and, if so, the appropriate remedy.

Legislation involved and requirements of legislation:

Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including:

‘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,’

Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.

In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.

Not every breach of contract will give rise to such repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

Section 3 of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the particulars of the terms of the employee's employment.

Conclusions:

Preliminary

The respondent has argued that by continuing to supply medical certificates and by failing to look for his p45 in writing that the complainant has not been dismissed, either constructively or otherwise.   I do not believe that the submission of certificates of itself is sufficient to indicate an intention to maintain the employment relationship. I also note that the complainant did seek his p45 albeit verbally, which clearly indicated that he had no intention of returning to his position with the respondent. I therefore reject the argument that the complainant’s employment with the respondent continues.

The period of one week from the original hearing in which to supply information to me was intended to ensure that the matter could be dealt with in a timely fashion and not to impose a requirement, a minor breach of which could mean dismissal of the complainant’s case. I note that the respondent’s solicitor made contact within a reasonable period and I therefore reject this argument.

Substantive

It is clear from the evidence given by the complainant and his doctor that he suffered from work related stress for a prolonged period of time. It is also clear that the behaviour of Mr MG and some of the complainant’s fellow employees, was the primary cause of this stress. Mr MG is the Managing Director of the Respondent and, at the time of the complainant’s departure, there were no procedures in the company to deal with such issues and therefore the complainant had no avenues open to him to adequately address his concerns. I accept the complainant’s evidence that he felt too intimidated to pursue the complaint of bullying. Therefore it is my view that the ‘ reasonableness test ‘ which asks whether the employer has conducted his affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer has been met.

The respondent has acknowledged that he is in breach of the Terms of Employment (Information) Act, 1994 insofar as he did not provide the necessary particulars within the required time frame.

Decision:

I have investigated the above complainant and make the following decision in accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:

The Complainant was unfairly dismissed

In accordance with s.7 of the Act, I order the Respondent to pay the Complainant:

The sum of € 30,000 (the equivalent of 64 weeks’ pay) in compensation.

The respondent has not fulfilled the requirements of Section 3 of the Terms of Employment (Information) Act, 1994.

In accordance with Section 7 of the Terms of Employment (Information) Act, 1994 I order the Respondent to pay Complainant :

The sum of €500 in compensation.

The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

Dated:   20/10/2016