ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002446

Complaint for Resolution:

Date of Adjudication Hearing: 07/07/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Venue: Ardboyne Hotel, Navan, Co. Meath.

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under section 8 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.

Background:

The Complainant was employed as a seasonal worker with the Respondent from the 1^st of August 2011 to the 8^th of February 2016. He worked in the roll as a mix maker and was paid at the rate of €420 per week. He alleges that he was constructively dismissed by the Respondent after he was bullied and harassed by a number of fellow workers. He filed a complaint with the Workplace Relations Commission on the 22^nd of March 2016.

Complainant’s Submission:

The following is a summary of the Complainant’s submission as outlined by his Representative.

That he worked for the Respondent as a seasonal worker since 2011. He worked as a mix maker. He enjoyed working for the company until May/June 2014.

A formal hearing took place on the 15^th of June 2015 and a subsequent report was furnished to the Complainant on the 1^st of July 2015. The outcome of the investigation led to the following recommendations;

‘It was confirmed by independent employees that the Complainant was treated very badly from their perspective. They were fearful of complaining as they did not want to be treated the same. Where an employee of the company is promoted and given extra authority, with that authority there is extra responsibility. For any employee to engage in this behaviour is serious but because of the extra authority and responsibility, it would be even more serious. There is extra trust placed in these employees. To break that trust which is a fundamental element of any employment relationship, has to be treated as very serious. The company must consider the standard required here and any precedent set from this case. What A.K. did was serious and A.K. should be progressed through the disciplinary procedure. In any event care must be taken that A.K. is prevented of exercising control or authority in the way or manner in what he did. I.B. while her conduct was not of the same level of seriousness, her position left her where she should have and could have protected the employee. She needs to be aware of the company’s duty of care to all staff and the serious nature of any failure in this regard. I.B. should also be progressed through the disciplinary procedure. From the investigation we find that the organisational structure needs urgent review. Poor communication played an important part in this complaint. We would recommend that English (or if agreed one another language) be spoken at work by all employees. All new staff must have a working knowledge of that language. Employees working in the business that have not much English should take a course in English. This would also assist in safety. It would create a more inclusive workplace. Where there are two people from the same country working together, for example Poland, they must speak English at work.

The bullying and harassment policy must be updated and where anyone raises a concern in this area, it should be taken seriously. There should be a formal and an informal resolution process. It should be clear to everyone that the company do not tolerate bullying. It is important not just that the company do not tolerate bullying but that it is seen that bullying is not accepted. It must be clear that if anyone raises a complaint that it will be taken seriously and it needs to be seen that anyone who is found to have suffered from bullying, will not get unfavourable treatment. Where possible the bully should be moved, not the person who is bullied.

In this case the Complainant has requested not to return to the area as long as either of the two people complained of are in the area. Following this investigation, only part of that solution is resolved for the Complainant. He may or may not accept all aspects of the report but his views need to be given careful consideration. This situation needs to be monitored and any appropriate action taken to assist the Complainant.

The report highlighted the fact that he was bullied at work by his work colleagues. He was out sick because of the bullying for a significant period of time. In July and August, he met with company representatives for discussions on how to resolve the issue. They acknowledged that he was the victim of bullying and harassment and what happened should not have happened. He was advised at this meeting that he should consider returning to work under A.K. and I.B. He rejected this proposal. No suitable alternative position was offered to him in fact his employers engaged in negotiations to sever his employment. He resisted this attempt. He was left with no alternative in the circumstances but to resign his position. He communicated this decision to his employer in February 2016.

Respondent’s Submission:

The following is summary of the Respondent’s submission as outlined by the Representative;

In April 2015, the Complainant filed an official complaint with the Respondent alleging that he was being bullied and harassed by his production supervisor A.K. His complaint was taken very seriously and it was found that the ‘general treatment of the complainant was poor and of a bullying nature’. The Respondent as you might expect, from any good responsible employer has a low tolerance to any behaviour of this nature. The Respondent acted accordingly and took appropriate action to deal effectively with the unacceptable behaviour. Disciplinary action was taken with the individuals involved. The Respondent also went to considerable effort to ensure that the Complainant would be protected. The Complainant stated that he would not return to his work area. The Respondent offered the Complainant several alternative options. A full investigation was carried out into the Complainant’s complaints and the Respondent implemented the recommendations and changes that were suggested. Training was provided to supervisors and managers and there was restructuring within the organisation. The Respondent also facilitated the Complainant and paid him in full for the time he was absent despite having no company sick pay scheme. A financial exit offer was made to the Complainant and was turned down. It was very clear that all the ills of the world were being planted at the company’s door by the Complainant with a view to extracting as much as possible from the Respondent. The Respondent has to stand firm on this as the knock on effect of this type of thinking will damage the company.

Findings:

Based on the evidence presented at the hearing and on the investigation report conducted by the Respondent I find as follows;

The Complainant was bullied and harassed for a significant period of time by two supervisors in the organisation. No appropriate action was taken against those two supervisors. They still operate as supervisors in the organisation despite their unacceptable behaviour. I do not accept that the Respondent adequately implemented the recommendations of the investigation report. Failure to do so was a grave omission. The Complainant had no choice but to resign from his employment as a result of the behaviour of the supervisors in question and also due to the lack of adequate action to remedy the problem by the Respondent.

Decision:

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

Based on both written and oral evidence provided at the hearing, I find that this complaint is well founded in that the Complainant was constructively dismissed from his employment. In calculating the financial loss which is attributable to the Complainant’s dismissal, Section 7(2) of the Unfair Dismissals Act, 1977 outlines the following subsections that regard should be had to

(a). the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer.

(b). the extent (if any) to which the said financial loss was attributable to an action or omission or conduct on behalf of the employee.

(c). the measures (if any) adopted by the employee or, as the case may be, his failure to adapt measures, to mitigate the loss aforesaid.

(d). the extent (if any) of the compliance or failure to comply by the employer (in relation to the employee) with the procedure referred to in subsection (1) of section 14 of this act or with the provisions of any code of practise relating to procedure regarding dismissal approved by the minister.

(e) the extent (if any) of the compliance or failure to comply by the employer in relation to the employee, with the said section 14 ‘and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Taking all the circumstances of this case into account, I order the Respondent to pay to the Complainant compensation in the sum of €25,000 for breaches of Section 8 of the Unfair Dismissals Act, 1977. This sum must be paid within 6 weeks of the date of this decision.

Dated: 5^th October 2016