ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003898

Complaints for Resolution:

Date of Adjudication Hearing: 25/01/2017

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 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.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant was a delivery driver for the respondent company and says he has been constructively dismissed. He says his working conditions were intolerable in circumstances that he: a) was regularly required to work in excess of 48 hours per week which was not adequately reflected in the relevant documentation and he was required to work longer hours than any other member of staff in the company,

1. b) The deadlines placed on him were unrealistic and caused him undue and unnecessary stress, c) While it was official company policy for the complainant to take breaks he was subjected to verbal abuse by a more senior colleague if he did so,
2. d) The complainant was abused by a senior member of staff on the telephone and the same member of staff abused the complainant by mimicking his voice in a “girls” voice and other unacceptable comments.   In the circumstances the complainant was regularly bullied by the said senior employee who was persistently abusive,
3. e) the complainant was put under undue pressure to return to work after a serious workplace accident causing him further stress and hardship when he did return prematurely,
4. f) The complainant was verbally abused when he refused to deny that he was going to claim for the workplace accident,
5. g) The complainant’s privacy was invaded in that other staff and indeed customers were aware of the difficulties he was encountering at work,
6. h) While certain investigations were carried out into the complainant’s allegations the complainant is of the view that same were not impartial, nor carried out with a view to ascertaining the veracity of the complainant’s concerns, nor with a view to addressing the concerns that the complainant raised, J) In the circumstances the complainant has endured serious work-place stress, has been ill for a prolonged period and has been constructively dismissed.

The complainant also says that the investigation into his complaint of bullying and other grievances was not independent as it was carried out by a person who had acted as an advisor to the company.

In respect of the other complaints the respondent failed to pay holiday pay under the Organisation of Working Time Act 1997 and failed to pay the Complainant his annual leave entitlements under the Organisation of Working Time Act.

Finally, the complainant continually worked over 48 hours during the course of his employment with the respondent without breaks. The complainant normally worked 60/65 hours per week without breaks and 70 hours per week when he worked 7 days and was only paid for 48 hours per week during the course of his employment with the respondent.

Respondent’s Submission and Presentation:

The respondent charts the history of the matter back to June 2014.

The complainant failed to attend for work and was subsequently the subject of a disciplinary hearing which resulted in a written warning. He did not appeal the warning.

Then on September 19th 2014 the complainant lodged a formal grievance with the company outlining twelve grievances. (By way of example one of these related to the August disciplinary sanction which he had declined to appeal).

Prior to this a meeting had taken place on September 1st to discuss a number of grievances against one of the company managers. A meeting was convened to consider the grievance on October 7th and the complainant had been given written notice that his September 19th grievances would be addressed at that meeting. He was accompanied at the meeting.

(The complainant went on sick leave and did not return to work up to the time he eventually resigned in May 2016).

Following that meeting, the complainant refused to confirm his agreement to the minutes of the meeting, saying that his complaint had only been partially dealt with.

On October 22nd he was asked to clarify in detail what the outstanding issues were in response to which he submitted a twenty page document on November 4th of quite extraordinary detail but still did not confirm his agreement to the minutes of the meeting.

He requested and got a full written transcript of the meeting on December 3rd having declined an opportunity to listen to a recording of the meeting. On December 29th 2014 he asked for an extension of time to respond but did not do so.

He was asked again on March 5th 2015 to do so but responded by submitting, via his trade union, fresh grievances against a particular individual.

The company appointed an investigator into the grievances who reported on August 18th and sent his conclusions to the complainant’s union.

The union responded on August 24th indicating that it wished ‘to conclude the matter’ and requesting a meeting with the company which took place on September 1st and at which the complainant said he wished ‘to move on’.

The respondent offered a severance arrangement which the complainant sought time to consider. Shortly after that it seems that the union disengaged from representing the complainant indicating on September 6th or 7th that it did not know the complainant’s position.

Nothing further happened until May 2016 when the complainant resigned on May 17th.

The respondent says that the complaints under the Organisation of Working Time Act and the Payment of Wages Act relate to a period before October 2013 and are therefore not within the time limits prescribed by those Acts. Also, the complainant made no complaint internally within the company at that time.

Findings and Conclusions

The events in this complaint fall into three phases; those up to the August 2014 period, a second phase from then until the following August/September, and finally the period after that; essentially a period in which there was no communication between the parties.

I accept the submission of the respondent that issues concerning events falling before October 2013 are not within jurisdiction and are ‘out of time’. In addition, I do not see these as playing any part in grounding the complainant’s case for constructive dismissal.

The main events in the case, and those which may have a bearing on the complainant’s case for constructive dismissal, took place between September 19th 2014 and almost exactly one year later when an attempt was made to settle the matter and the complainant’s trade union seemed to step away from the case.

Constructive dismissal takes place when an employer’s behaviour is such that an employee may be justified in taking the somewhat drastic step of breaching the contract of employment (admittedly it is equally drastic when breached by the employer; this being in the nature of a contract.)

In such cases therefore the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally 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.

The generally accepted statement of the law has been outlined by the Supreme Court in a decision where it 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.’ Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In addition to the ‘contract test’ above this encapsulates the ‘reasonableness’ test which allows for an assessment of the employer’s behaviour by reference to whether it has been so unreasonable so as to justify the employee resigning his position.

Looking at the sequence of events between September 2014 and over the following twelve months it is hard to see any behaviour on the part of the employer which could be said to fall within either of these criteria or fail either test. Indeed, it demonstrated quite a degree of patience in the face of a sequence of actions on the part of the complainant which are difficult to understand.

While it is not easy to be precise an overview of the complaints indicates that, of the twelve issues raised in the letter of September 19th 2014, five pre-dated October 2013, two related to the disciplinary hearing (which he had failed to appeal the previous August), one related to alleged comments by third parties (chefs in supplier companies) and two to alleged behaviour or comments by co-workers.

Without making any value judgement on any of them, and specifically those not referred to above it is very difficult to see what there was of such substance in the complaints to contribute to or more importantly justify what followed. Nothing on the list submitted by the complainant has the appearance of a grievance which would present any great challenge in working towards a resolution with good will on both sides.

Nonetheless, following the October 7th meeting, which lasted four and a half hours, he sought and in due course got a full transcript of the disciplinary meeting which ran to one hundred and five pages, and simultaneously submitted a document of a further nineteen pages containing minute detail of transactions with suppliers and other material but thereafter (and indeed before that) his failure to state simply what his issues were about the meeting of September 19th was not explained at the hearing.

There is a degree of disproportionality about all of this effort having regard t the relatively minor issues involved.

Indeed, between that date and the following March the complainant could not provide the respondent with a response or his observations on the outcome of the meeting, other than in March to submit a fresh list of grievances. It should be noted that the complainant had not been at work in that period so this obviously was not new material.

In any event, the respondent initiated an investigation into the matter. This did not uphold the complaints. There was some criticism of the investigator’s independence arising from his previous engagement with the company as an advisor which I do not accept. An investigation of this type might often be carried out by a senior member of management of the same company and I see no reason why the work of the investigator in this case should be impugned.

Indeed he carried out a comprehensive and relative speedy exercise, and his general methodology was up to a good standard. In addition, despite having union representation at that point the complainant raised no objection at the time to the investigator.

What happened next is easily described but no explanation for it was offered at the hearing. As noted above when the respondent made contact with the union to ascertain the complainant’s response on the severance proposal it could not get any response, and it appears that the union was no longer engaged on his behalf.

Had the complainant resigned at that stage he would have had extreme difficulty in meeting the criteria for a constructive dismissal and in all probability would have failed to do so. His participation in the discussions about a severance package would probably have been fatal to that case.

He continued to submit medical certification until his resignation on May 17th the following year; 2016 and it appears that the respondent made no further efforts to make contact with him or resolve his employment status in the meantime. Bear in mind he had been on sick leave since September 2014.

Equally, apart from submitting medical certification the complainant failed to raise any issue about his status either, although he continued to be unfit for work and was medically certified to that effect.

Quite often an employer will initiate proceedings to terminate employment on grounds of incapacity and given the duration of the illness here might have had grounds to do so.

But there is no obligation on the respondent to do so. Its inaction in the period following the August 2015 talks when it was in regular receipt of medical certificates can not be said to have created grounds for the complainant (who at the hearing was still unfit for work, and would continue to be for some time) to terminate a contract of employment he was in any event unfit to discharge at that stage.

Accordingly, I find that he was not unfairly constructively dismissed.

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 do not uphold Complaint CA-00005687-001 under the Unfair Dismissals Act, 1977 for the reasons outlined above and that case is dismissed. Complaints CA-00005687-002 and 003 under the Organisation of Working Time Act, 1997 and CA-00005687-004 on the Payment of Wages Act, 1991 were not submitted within the time limits required by the Act and they are also dismissed.

Dated:   22 June 2017