Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00007957-001

03/11/2016

The Complainant   claims that having worked for the Respondent for over 11 years he was   dismissed without notice and claims that this was an unfair dismissal within   the meaning of Section 6 of the Unfair Dismissals Acts. The Respondent   disputes the claim of unfair dismissal and claims that the Complainant   resigned his position of employment.

The Complainant is a Polish   national who commenced employment with the Respondent on 1 June 2005. He was   employed as a night porter in a Centre for asylum seekers (‘Centre’). He   claims that he worked 42 hours per week and was paid €600 gross per week. He claims   that he was dismissed without notice on 23 September 2016.

The Complainant said that   he had a variety of jobs in the Centre, his main role was security but he did   a number of other manual jobs such as painting, etc. He maintains that he worked hard, that work   was important to him and he never caused any problems for his employer. He   further maintains that although some of the staff in the Centre had issues and   difficulties with the Respondent, he had no major difficulties with his   employer until an incident on 23 March 2016.

The Complainant said that   the Centre’s Manager, Ms. O, had left him a note in an envelope asking him to   explain why a few days earlier a named non-resident was allowed on site after   the 10pm curfew. The Complainant felt that this was similar to a reprimand, written   notes were not usually left for staff to explain themselves, and he had never   received one in his 11 years. He said information notes were usually left in   a book at reception for everyone to see. He claims that this was done only because   Ms. O had issues with this named individual and she was taking the   Complainant to task because of this person. The Complainant also said that a   list of tasks were left for the night staff each night and he recently felt aggrieved   that he always ended up with the heavier duties. The Complainant said that although   they may appear insignificant on their own the note left for him coupled with   a number of other recent events really upset him and he let things get hold   of him.

The Complainant said he   was very stressed on the evening on the 24 March 2016. He was not feeling   well and did not go to work. He said he started drinking and he attempted to   take his own life. He said that his family intervened and saved his life.

The following day his   wife who works as a cleaner in the Centre returned to work and met with Ms. O.   She outlined the issues that the Complainant had with regard to the list of   work duties and in particular the note left for him to explain himself. She   said she wanted to make things good for her husband. She also told Ms. O of her   husband’s current poor mental health and of the suicide attempt the night   before. The Complainant’s wife claims that she herself was very tired,   emotional and still in shock from the previous night’s events. She said she   got a call from her daughter to say that the Complainant was on his way into the   Centre and she told Ms. O that her husband was very angry with her. In   cross-examination the Complainant’s wife did not dispute that she could have   said that the Complainant was on his way and that he was going to “kill” Ms.   O. However, she claims if she did say this that she did not mean the literal   meaning of the word “kill”. She said her English is limited and her husband is   not a violent man and Ms. O would have known that having worked with him for   11 years.

The Complainant’s evidence   is that he never said that he was going to kill anyone. He said that he went   to the Centre and wanted to speak with Ms. O. The Complainant maintains that Ms.   O overreacted by calling the Gardaí and the doctor and felt there was no need   to get the authorities involved. The Complainant states that this was central   to all the problems and ultimately led to his dismissal.

The Complainant claims   that he and his wife were invited to attend a meeting on 31 March 2016 with Mr.   H, a HR adviser. They knew Mr. H from working with the Respondent on HR   issues in the past. The Complainant claims that his mental health was not good   at the time and he informed the Respondent that only his wife would attend. A   further meeting was scheduled for 6 April, where the Complainant, his wife   and Mr. H attended. The Complainant said he did not trust Mr. H, as he was   involved in a previous issue/dispute involving other staff at the Centre which   did not go well. The Complainant claims that he felt he was not being   listened to at the meeting and that he was sceptical about Mr. H’s   involvement. The Complainant, in cross examination, conceded that he left the   meeting on a number of occasions but he did return each time and that he was   under a lot of stress. He claims that he agreed to attend the Respondent’s company   doctor and he was certified unfit to work for 4-6 weeks.

The Complainant said that   he attended a meeting with the Respondent on 31 May 2016 and indicated that he   wished to return to work. He attended the company’s doctor and was certified   fit to return. It was agreed that further attempts would be put in place to   resolve the outstanding problems he had with Ms. O. Further meetings were   arranged in July, where the Complainant claims that his wife was asked to   attend and not him and where various “options” were considered on how to   resolve the Complainant’s outstanding issues. The Complainant maintains that   these included a discussion on an exit strategy from the Respondent. The Complainant claims that an offer was   made for him to leave and he was upset with that. He said that having worked   with the Respondent for over 11 years the Respondent was willing to offer a   small sum of money to get rid of him. He said he refused the offer.

The Complainant said that   the Respondent later advised him that an independent 3rd party, Mr. D, would   investigate the outstanding matters he had with the Respondent and he was   invited to make a submission about his complaints in advance of a meeting   with Mr. D. He said that he was hoping that this was the start of a process   and they would get a resolution and things would ultimately work out where he   could go back to work.

He found the drafting of his   complaints very difficult and highly stressful. He claims that the meeting   with Mr. D on 1 September 2016 was equally difficult and stressful. He felt   that the meeting concentrated on the alleged threat by him on Ms. O’s life,   something he was adamant had never happened and nothing to do with his   complaints of how he was treated by Ms. O.

The Complainant   claims that he received an email on the morning of 21 September 2016 from one   of the Respondent’s Directors, Mr. M, inviting him to attend a meeting on 23   September 2016 to discuss the report and recommendations from Mr. D. The Complainant   claims that he did not know the report was finalised and had not received a   copy. The Complainant’s wife emailed Mr. M for a copy of the report on the   afternoon of the same day. They were furnished with a copy later that   evening. The Complainant noted Mr. D’s findings and felt upset and was unsure   what this meant for him. His wife emailed Mr. M to say that they were taking   legal advice and would not be attending the meeting on the following day. The   Complainant and his wife said that they did not know what their options were and   needed time to get advice would revert to the Respondent in due course. The   Complainant claims that at this point he was not being paid a wage from the   Respondent.

The   following Wednesday, 28September 2016, the Complainant received   an email from Mr. M. which stated that as the Complainant “did not attend the meeting[of 23 September]” - the previous   Friday, “[the complainants] refusal to   participate with the company policies and procedures and your refusal to   co-operate with the independent investigation clearly indicates to us that   you have no intention or interest in seeking a resolution. As a result, we   now take it that you no longer wish to be employed by the company and that   you have resigned your employment with the company from Friday last, 23rd   September 2016. Your Form P45 and any monies due will be issued to you”. The Complainant maintains that he never   resigned and this letter amounts to a dismissal.

The Respondent   is the owner of the Reception Centre and claims that the Complainant was a   member of the night staff working there for around 11 years. It claims that   the work environment can be difficult and challenging at times. It claims   that it never had any problems with the Complainant until events changed on   25 March 2016.

The Respondent   claims that the Complainant did not report in for work on 24 March 2016. The   next morning the Centre Manager, Ms. O, spoke with the Complainant’s wife,   who also works in the Centre, where it was said that the Complainant was very   upset and angry with Ms. O, and that he was on his way to the Centre to kill   her. Ms. O said that she was also informed of the turbulent events on the   night before, where the Complainant had been drinking and attempted to take   his own life. Ms. O said that she was alarmed, particularly, as the Complainant’s   wife seemed concerned and was acting nervously. Ms. O decided to call the   Gardaí and a doctor as it was clear that the Complainant was in need of help   and she was unsure how he would present at the Centre. Ms. O said that she   was aware that the Complainant did arrive to the Centre and voluntarily left   with the Gardaí.

The Respondent   claims that it took the death threat allegations against Ms. O very   seriously. It contacted its HR advisor, Mr. H, and asked him to get involved   and help resolve the situation informally. The Respondent claims that Mr. H   made arrangements to meet the Complainant and his wife on 31 March 2016. Mr.   H claims that the Complainant did not attend the meeting but his wife was   present and was very helpful. A second meeting was arranged for 6 April 2016,   where the Complainant was present. Mr. H said it was a very difficult   meeting, the Complainant was very upset and he left the meeting on four   separate occasions and had to be persuaded to return on each occasion. Mr. H   said that the Complainant reported that he had been badly treated by Ms. O   but he denied that he ever threatened to kill her. The Respondent claims that   the Complainant met with the company’s doctor and he was certified unfit to   return to work for 4-6 weeks.

The Respondent   felt that it had two claims to deal with, one of a death threat by the   Complainant on Ms. O and another of unfair treatment, bullying and   harassment, by Ms. O on the Complainant. The Respondent decided that it was proper   that both complaints be investigated.

On 31 May   2016 the Respondent claims that the Complainant indicated that he was ready   to return to work and it was agreed that attempts would be made to resolve   the outstanding issues. The company’s doctor assessed him on the 20 June 2016   and deemed him fit to work. However, the Respondent felt that the Complainant   could not return to work without matters being first resolved. A meeting was   arranged for 7 July 2016, where the Respondent claims the Complainant did not   attend but his wife attended. A further meeting was arranged for 13 July   2016, again the Complainant did not turn up but his wife attended. The Respondent   claims that the Complainant was out on paid leave through this process and   they were getting nowhere near a resolution. The Respondent claims that they   had taken a “common sense approach”   to try to resolve things and get the Complainant back to work. The Respondent   said that in total of the five meetings arranged for him, he failed to show   up for three of them. The Respondent said it felt that the Complainant was just   not engaging.

The Respondent claims   that in a further attempt to resolve matters they appointed Mr. D, an   independent third party, to investigate both of the complaints. The Respondent   said that the Complainant was asked to submit his complaint in writing by 18   July 2016 and that “this step is   catered for in the company’s policies and procedures of which you are in   possession of.” The Respondent said it did not receive the written   complaint from the Complainant until 18 August 2016, which in turn was passed   on to Mr. D.

Mr. D, who attended the hearing and gave oral evidence, said his remit was to investigate the bullying and harassment complaints. He said he was furnished with the complaints and met with both parties separately. He claims that the meeting with the Complainant and his wife was very difficult, the Complainant was unsure of the contents of his own complaint, that he struggled with the language in his own submission, that he was unable to give examples to support the allegations made against Ms. O, the Centre’s manager. Mr. D said that the Complainant maintained that he never made a death threat against anyone’s life and therefore there was no need to withdraw such a threat. Mr. D said that he sent his report to the Respondent around the 5 September 2016, and his findings were that there was no case of bullying or harassment against Ms. O.

The Respondent claims that it sent an email on 21 September 2016, where it called for a meeting   with the Complainant for 23 September 2016 to discuss the findings   of Mr. D’s report.

The Respondent said it was only at that stage that it sent a copy of the Investigator’s report to the Complainant for the first time. The Respondent said it thought Mr. D had already sent the Complainant a copy directly. The Respondent said that neither the Complainant nor his wife showed up for the meeting on 23 September 2016. The Respondent claims that following the Complainant’s non-attendance at this and several other meetings and his repeated failure to engage in its attempt to resolve his dispute was unreasonable. The Respondent   said that a letter was sent on 28 September 2016 outlining its understanding of the Complainant’s position, namely that the Complainant’s refusal to participate … indicates to us that you have no intention or interest in seeking a resolution. As a result, we now take it that you no longer wish to be employed by the company and that you have resigned your employment with the company from Friday last, 23rd September 2016. The letter also stated that his P45 and any monies due to him would be issued.   The Respondent maintains that it did everything in its power to resolve this but was frustrated by the lack of engagement from the Complainant at every turn.

The Relevant Law

Section 1 of the Unfair   Dismissals Act 1977 provides that:  

"dismissal", in   relation to an employee, means—

(a) the termination by   his employer of the employee's   contract of employment with the employer, whether prior notice of the   termination was or was not given to the employee.

(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, or

(c) the expiration of a contract   of employment for a fixed term without its being renewed under the     same contract or, in the case of a contract for a specified purpose (being a     purpose of such a kind that the duration of the contract was limited   but was,   at the time of its making, incapable of precise   ascertainment), the cesser of the purpose;

Section 6 of the Unfair   Dismissals Act, 1977 provides:

“(1)   Subject to   the provisions of this section, the dismissal of an employee shall be deemed,   for the purposes of this Act, to be an unfair dismissal unless, having regard   to all the circumstances, there were substantial grounds justifying the   dismissal.

…

(4) Without prejudice to   the generality of subsection (1) of this section, the dismissal of an   employee shall be deemed,  for the purposes of this Act, not to be an unfair   dismissal, if it results wholly or   mainly from one or more of the following:

(a) the capability,   competence or qualifications of the employee for performing work of the kind   which he was employed by the employer to do,

(b) the conduct of the   employee

(c) the redundancy of the   employee, and

(d) the employee being   unable to work or continue to work in the position which he held without    contravention (by him or by his employer) of a duty or restriction   imposed by   or under any statute or instrument made under statute.

…..

(6)   In determining   for the purposes of this Act, whether the dismissal of an   employee was   an unfair dismissal or not, it shall be for the employer to show   that   the dismissal resulted wholly or mainly from one or more of the matters    specified in subsection (4) of this section or that there were   substantial grounds justifying the   dismissal.

Conclusions

It appears   to me there are a number of aspects that I must carefully consider in coming   to a decision on this case. Firstly, the conduct of the parties during a   protracted and difficult period when attempts were being made to get a   resolution and return the Complainant back to employment. Secondly, I must   determine whether there was a dismissal or not, and finally, should I find that   there was a dismissal, was this unfair in the context of Section 6 the Unfair   Dismissals Act 1977.

The fact   of the dismissal was very much in dispute between the parties in the present   case. Accordingly, it is a matter for the Complainant to establish that he   has been dismissed by the Respondent.

The Complainant   was a longstanding employee of the respondent having commenced his employment   in June 2005. From the evidence adduced it would appear he worked hard and   enjoyed working with the Respondent notwithstanding some issues that arose   from time to time. It is clear he was held in high regard by the Respondent. It   is also clear that, on the face of it, a relatively minor set of events that   occurred on 23 March 2016, namely, a written note left for him in an envelope   by Ms. O and him feeling aggrieved having to carry out more of the difficult/heavy   tasks during his night shift, had a detrimental effect on him and his mental   health.

I am   satisfied that these issues had an extraordinary cumulative effect on the Complainant   and that was still evident on the day of the hearing.

It is   clear that the Respondent was unaware as to how the Complainant was feeling at   the time and not until Ms. O met with the Complainant’s wife on the morning   of 25 March 2016. I am satisfied that it became very clear to Ms. O that the Complainant   was in a state of high anxiety and anger and much of this was directed at her.   Although the Complainant is critical of Ms. O’s decision to call the Gardaí   and a doctor, claiming that it was an overreaction, it is clear to me that Ms.   O’s decision was taken knowing that the Complainant was on his way to the Centre,   aware of the nature of the previous evening’s events and the alleged threat   against her life. Accordingly, I am satisfied that this was not an   unreasonable decision.

The Respondent’s   decision to attempt to deal with matters in what they refer to as a “common   sense approach” in other words, informally and swiftly is also practical and reasonable.   However, it appears that the process ran into difficulties very early on. It   is clear that there were misunderstandings and a lack of clarity from both   sides. I have heard that meetings were held without the Complainant being present   and information had to be relayed back to him through his wife. Meetings   attended by the Complainant were highly explosive, difficult and frustrating.   There appears to be a lack of understanding as to what needed to be addressed,   who was to attend, what formal process they were pursuing - was it a disciplinary   process, a bullying process, a harassment process or a grievance process.

The Complainant’s   evidence is that he was getting mixed messages from the Respondent, he claims   that one of the Directors was in contact telling him everything will be fine   and things will be sorted out, and on the other hand his actual interaction   with the Respondent’s where he felt that he was not being listened to and that   the Respondent did not want him to return to work. It would appear that both   the Respondent and the Complainant were left confused and suspicious of each   other’s intentions during this time.

With the   benefit of hindsight and having met the parties at the hearing it is obvious   that the parties were not communicating at the same level, the Complainant   and his wife’s command of the English language was not very good and I would   expect was tested to its limits in the volatile environment they found   themselves in. I am satisfied that the Respondent made efforts to resolve   this problem informally and failed. I am satisfied that both parties   contributed to that failure. I find that the Complainant had no excuse for   failing to attend meetings in July 2016. These meetings were specifically set   up to discuss his route back to work, I do not accept that his distrust of   Mr. H was a reasonable excuse nor do I accept that these meetings were   scheduled just for his wife to attend.   I find that although the Respondent was endeavouring to resolve this   matter informally the lack of clarity around the process and the failure to   recognise the substantial communication difficulty between the parties was underestimated.

I note Mr.   D’s evidence where he said that his remit was to investigate a bullying and   harassment claim based on the submissions received from both parties. It   would appear that the alleged threat on Ms. O’s life was raised during the   course of this investigation and it would appear the Complainant felt it was   focused on way too much during the investigation, in what he felt was his   complaint of bullying and harassment against Ms. O. I am mindful that it is the Complainant’s   position that he never made a threat on Ms. O’s life and this to him was the   main focus of all the meetings and investigations. It would appear that the Complainant   wrongly or rightly was unsure what was happening at this stage of the   process. Mr. D said that the Complainant was even unsure of Mr. D’s role in   the investigation. Mr. D’s report substantiates the position that the Complainant   and his wife were very confused, unsure of the language in their own   submission, and it generally was a very difficult meeting.

I note   that the Respondent received a copy of Mr. D’s report on 5 September 2016 and   called a meeting with the Complainant on 21 September for 23 September. It seems   that it only transpired at that point that the Complainant was not in receipt   of Mr. D’s report and had to ask for a copy two days before the scheduled   meeting to discuss it. The Complainant’s evidence is that having read the   report and learned that his complaint was unsuccessful he was upset and   unsure what his options were. It was at this point that his wife emailed the Respondent   to inform it that they would not be attending the meeting as they wanted to consider   their position and get legal advice. I note that the Respondent still went   ahead with the meeting in that short timeframe, and in receipt of an email   from the Complainant’s wife stating that they would not be attending. It is   clear to me that the Respondent felt frustrated by the entire set of events   and decided to send its letter dated 28 September 2016.

I find   that the whole communication around the sharing of the investigators report with   the Complainant somewhat confusing and the subsequent engagement with the Complainant   in the immediate aftermath seems accelerated. The Respondent received Mr. D’s   report on 5 September and within 3 weeks the Complainant’s employment was   terminated. I note the Respondent was aware that the Complainant had not seen   the report until, in effect, the day before the scheduled meeting and was in   receipt of an email to say the Complainant will not be attending that   meeting. It still went ahead with the meeting know the Complainant would not   attend and then issued its final letter 5 days later.

I am   satisfied that with better communications throughout this process the   possibility of the Complainant actually returning to work was a reality.   Unfortunately, this never materialised and now the opportunity of an amicable   return has without doubt passed.

Likewise,   I am satisfied that both parties contributed to the breakdown in   communication here. However, I am satisfied that the onus is with the   Respondent to ensure that its employees are fully aware of what is happening.   I am not convinced that was ever achieved. I am satisfied that the Respondent’s   frustration with the Complainant was to ultimately issue a letter that can   only be considered as a termination of his employment. Bearing in mind the Complainant’s   poor language skills I am satisfied that the Complainant would not see this   letter other than a termination of his employment.

I find that   the letter of 28 September 2016 from the Respondent holds all the ingredients   of a letter of a dismissal, such as picking the date of termination of   employment, as decided by the Respondent, a reference to forwarding on a P45   and the money owed. The letter suggests that the Complainant’s action amounts   to his resignation for lack of engagement.

I deem that is was incorrect   to interpret the Complainant’s failure to attend the meeting on 23 September as   a resignation. The Complainant did participate in the 3^rd party   investigation, attended the meeting with Mr. D and asked for a copy of the   final report. The Complainant had just received a copy of the report, he highlighted   to the Respondent that he would be seeking legal advice and that he would be   in contact. I would have deemed the Respondents action here as engagement.

I find that the follow-up   letter of 28 September to be putting words in the Complainant’s mouth. I note   that the Respondent never raised the issue that there was a possible danger   to the Complainant’s employment due to his actions or inactions.

The parties are in dispute   as to who is responsible for the termination of the Complainant’s employment.   The Complainant was very clear that he has not resigned. The Respondent has   determined that the Complainant has resigned and this is due to his actions   for failure to act. Accordingly, I must then consider what did happen and who   is responsible. I note in Frances Meenan’s book, Employment law 1^st   Ed, 2014 - Chapter 20 - 68 where the author states “It should be noted that there is no provision for “self-dismissal”.   In other words, an employer cannot state to an employee that if that employee   does not do something or does not come in to work, it is deemed to be a   “self-dismissal”. There is no such thing; either the employer or the employee   must actually terminate the contract of employment.”

I deem that the facts in   this case are equivalent to the Respondents implying that the Complainant’s lack   of engagement has led to this resignation. As described above, in relation to   “self-dismissal”, I am satisfied the employer is not entitled to make that   decision. I consider the Respondent’s decision to issue the letter of 28   September 2016 actually terminates the Complainant’s contract of employment   as opposed to the Complainant failing to attend the meeting on 23 September   2016. I find that this amounts to a dismissal.

Consequently, notwithstanding   the challenging set of circumstances the Respondent found itself in, in   particular with its perception that the Complainant was not engaging, I find   that there were serious procedural deficiencies in how  the Respondent   managed the process from start to finish, which I believe were unreasonable   and fatal to the Complainants employment.

I find that the Respondent   dismissed the Complainant as of 23 September 2016 and there were no substantial   grounds justifying this action. Accordingly I find that there was dismissal and   the dismissal lacked fairness which has rendered this dismissal unfair on   procedural grounds.

I find that   re-instatement is not appropriate given the breakdown in the relationship   that has occurred. Accordingly, I find that compensation is the more   appropriate remedy.

As   mentioned above, I find that the Complainant has contributed to his dismissal   by failing to stay fully engaged with the Respondent in the entire process particularly   at an early stage. I am satisfied that this lack of engagement ultimately was   a factor that led to the termination of his employment. The Complainant’s   contribution to his own dismissal must be reflected in the quantum of the   award.

I note that the Complainant   has not worked since this time, albeit, he suffered an injury to his leg which   prevented him from working, and except for a trial period with another respondent   that did not work out. I have not been presented with evidence to show that   efforts were made to mitigate his loss. I note that his last medical   assessment from June 2016 states that he is fit to return to work.

In the Employment Appeals   Tribunal case Sheehan v Continental Administration Co Ltd (UD858/1999) it   stated, “a claimant who finds himself out of work should employ a reasonable   amount of time each weekday in seeking work. It is not enough to inform   agencies that you are available for work nor merely to post an application to   various companies seeking work. The time that a claimant finds on his hands   is not his own, unless he chooses it to be, but rather to be profitably   employed in seeking to mitigate his loss”.

Therefore, I must find   that the Complainant has not fully endeavoured to mitigate his loss.

I find that the   Complainant was unfairly dismissed by the Respondent within the meaning of   Section 6 of the Acts.

In accordance with the   provisions of Section 7 of the Acts, I consider that the appropriate redress   in all the circumstances of the present case is compensation.

Section 8 of the Unfair   Dismissals Acts 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 Acts.

On the basis of my   findings above I declare the complaint is well founded. I direct the   Respondent to pay the Complainant compensation of €3,500.00 (three thousand five   hundred euro) within 42 days of the date of this Decision. This award of   compensation takes account of the Complainant’s contribution to his own   dismissal and his failure to mitigate his loss.

Unfair Dismissals Acts -   complaint upheld - compensation   awarded - Complainant’s contribution to his own dismissal