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-00013553-001

03/09/2017

In this case the Complainant claims that he was, from 2012 onwards, treated in such a way by his line, senior managers and fellow employees, that it had an adverse effect on his health and mental health in particular, that it caused him to resign from his position and leave the company. He is claiming constructive dismissal under Section 8 of the Unfair Dismissals Act 1977.

The Respondent does not accept the validity of the claim. They say that there were performance issues which they sought to address and that these claims were raised in 2016 arising from issues the claimant said occurred in 2012/2013. They say the Complainant was absent from work from 10/06/2013 until he resigned on the 28th September 2016. They say that despite their best efforts to encourage him to remain at work that he resigned on this latter date.

The Complainant worked at the Respondent company from the 20th May 2004.

He says that in September 2012 anxiety and deep depression overcame him, resulting in him feeling no self worth – not being a good husband, father, son, friend or employee. He says that this anxiety had a huge impact on his wellbeing, behaviour and his ability to function with normal day-to-day tasks. He felt that this gave management and staff within the Respondent company, licence to bully and intimidate him and make him feel that he was to blame for such behaviour towards him. He says that this made him physically ill and afraid to go to work. He gives examples of this as:

“The reporting of lack of safe practice which led to fear of retaliation.

Reporting intimidation and hostile behaviour as it may lead to some sort of retaliatory response.

Negative comments from management and co-workers

Being shouted at in private and in public.

Overmonitoring or constant criticism of his work.

Intentional holding back of information and tools he required to perform my work effectively.

His toolbox and locker being broken into while he was on holidays in September 2013.

Intentionally excluding him from normal workplace conversations made him feel unwelcome at the company.

Observed by his car and told to return to work. He was advised that he had been reported by an unnamed person. He says the charge was untrue and made up to intimidate him”.

On the 17th October 2016 he was given a final written warning for gross misconduct, though, he says, that no procedures were followed. He says that when he questioned this his supervisor reacted in a loud voice and banged the table with his fist.

He says that on the 18th October2013 he submitted written complaints to a senior manager about his issues, was listened to but that ultimately he found that his complaints were not satisfactorily dealt with. As a result he says he found the process unsatisfactory and unacceptable.

He says that on the 20th October 2013 that the Managing Director in addressing the workforce referred to cups “disappearing from the canteen” and that he made a remark which the Complainant felt was a reference to him and because of which some employees ridiculed him subsequently. He says he found this offensive, though no name was mentioned.

He says that he was advised that he was, on occasion, just walking around the factory and that his level of productivity was below that being achieved by all, bar one other employee. He says that he felt that this complaint by management was used to put pressure on him given that he was already in receipt of a final written warning. He felt that another warning, for anything, would mean the end of his employment with the company.

On the 20th June 2013 he says that he was advised by his supervisor that his level of rework was being noted. Another supervisor also advised him of the high level of rework required on the Complainant’s work . He says he felt that these complaints were in retaliation for his raising the health and safety issues of insufficient extraction and lighting in the area he worked in. He says that this was all part of a campaign to make him feel uncomfortable in the hope he would resign his position.

On the 9th September 2013 he says, he was handed an invitation to a disciplinary meeting which was to take place on the following day, the 10th September 2013. He says the letter included photographs of reworked parts and included an allegation of neglectful production. He felt, that given that he was already on a final written warning, that this could mean the end of his employment with the company. He says that he felt ill and was encouraged to go to his doctor. He did so and was signed off from work by his doctor. He says he never returned to work at the respondent company.

He says he was invited to a meeting by the Respondent, by letter of the 6th September 2016. This was described as an update meeting to discuss his ability to return to work in the near term. The meeting was scheduled for 14th September 2016. The Complainant was accompanied by his father.

The Complainant says he raised his concerns about being targeted by the Respondent and submitted his complaints by email on the 9th October 2016. The Human Resources manager at that time resigned her position at that time, due to ill health and was replaced by the current HR manager. Che advised the Complainant of this change and said she would respond to him, but that thyere was a delay due to the change of manager.

The HR manager conducted an investigation into the complainant’s grievances and issued her report.

The Complainant says he found the outcome unsatisfactory and requested an appeal using an external investigator. An external investigator was sourced and agreed between the Complainant and Respondent. The terms of reference were also agreed between the parties.

The Complainants complaints were not upheld by this investigation.

The conversations then switched to the possible return to work of the complainant and involved the Complainant’s doctor and the Respondent’s Occupational health specialist. Both recommended the Complainant’s return to work, on a planned and phased basis.

The complainant, following completion of this process, was due to return to work on the 17th July 2017, but he did not return. He sought other accommodations, including work in a different role. This was discussed but ultimately the Complainant did not favour any of the solutions offered. He requested an agreement on severance and sought 4-times salary. The company could not accede to this as they said that his position was open to him and no redundancy occurred.

The Complainant resigned from the company, in writing, on the 31st July 2017. The Respondent asked that he reconsider his decision and engage with them to see if any further accommodations could be agreed. The Complainant reiterated his decision to resign by letter of the 3rd August 2017.

He then referred his case to the WRC for adjudication.

The Respondent says that the Complainant commenced his employment with the Respondent company on the 21st June 2004 at a rate of pay of €11.66 per hour. He was a permanent employee who worked 39 hours per week.

On the 9th September 2013 he was asked to attend a disciplinary meeting to discuss an allegation of ‘neglectful production’. He went out sick from work on the 10th September 2013, the day the meeting was to take place.

The Complainant remained absent from work until his resignation on the 31st July 2017. Initially he submitted weekly certificates from his doctor, followed subsequently by monthly certificates. The initial prognosis was ‘stress’ and in February 2014 the prognosis changed to depression.

The Respondent kept the Complainant’s position open to him and did not put any pressure on him to return to work. On the 6th September 2016 – after almost 4 years of absence – the Complainant was invited to a meeting with the HR manager to discuss his medical condition and likelihood of returning to work.

During that meeting the Complainant raised concerns about being targeted by the company. They say that this was the first time that such issues had been raised with the Respondent. They say that “in order to fully understand the issues, the discussion on fitness for work was put on hold and Mr. O’Leary was invited to lodge his grievances”.   Because of a change in HR manager- the previous HR manager had left after serious illness- the recently appointed HR manager needed some time to investigate the grievances raised and advised the Complainant accordingly. This new HR manager had commenced with the company on 7th November 2016 and wrote to the Complainant on the 10th November to arrange a meeting for his grievances to be investigated.

The grievances that were raised dated back to 2012 and 2013, therefore a significant period of time had elapsed until Mr. O’Leary made the company aware of his issues in 2016.  

They say that a detailed and thorough investigation was undertaken by the HR manager which was concluded on 27th March 2017. The Complainant received a copy of the 71-page report, and an additional 27 pages of witness statements and the outcome letter dated 29th March 2017 .   He was offered the opportunity to have an external and independent appeal of the findings, if he wished to do so. The Complainant took up this opportunity and agreed the investigator and Terms of Reference of the appeal investigation with the Respondent.

The Respondent says the conclusions of the appeal were given in writing to the Complainant on the 12th May 2017. They say the Complainant’s grievances were not upheld.

They say that on the 18th May 2017 they wrote to the Complainant to make arrangements for a further occupational health specialist review. They say that having concluded the grievance review they needed to understand the Complainant’s readiness to return to work. The Complainant subsequently submitted a certificate from his doctor advising that he was fit for work. This certificate was dated the 9th June 2017. As directed by his own doctor, the Company was pleased that the Complainant was ready to return to work. Due to the duration of the complainant’s absence the company advised that it would need its occupational specialist to review the complainant, confirm his fitness to return and to advise of any accommodations or measures that needed to be taken to ensure a smooth transition back to work, based on the specific details of the Claimants role and circumstances.

The occupational specialist met the Complainant on 10th July 2017 and provided a medical report.   He supported the GP’s position that the Complainant was fit to return to work. This was also the view of the Complainant’s Consultant Psychiatrist. The only accommodation that was advised was a phased return to work.

The Company wrote to the complainant on 13th July 2017 confirming his phased return to work commencing on 17th July 2017. This letter contained the following information (appendix 13):

             Details of the phased return

             Reference to a meeting arranged for Monday 17th with his new supervisor to discuss his training plan

             Information about any changes to the Complainant’s team/department

             Arrangements for reviews with his manager and the Company Doctor to support his progress

             Appointment details for a further medical review after one month.

“All of these measures were undertaken to support Mr. O’Leary’s successful return to work and to make sure he was eased back in following a long period of absence”.

The Complainant did not return to work on 17th July 2017, as planned. He contacted the HR Manager on Friday 14th 2017, by phone, to express his concerns for return, citing that he was unsure of how it would work. He was offered reassurance at the time and appeared to be accepting of this.   He called back again that day with the same concerns. In the weeks that followed, up until his resignation there was a large amount of correspondence between the Respondent and the Complainant. They say the Complainant said that he could not see how his return to work ‘would work’ and asked if the company could ‘reach an agreement’ with him. The Respondent says that a further meeting was arranged with the Complainant, for the 19th July, at which the following items were discussed:

1.       The complainant’s request for redundancy or severance

2.       The Complainant’s return to work

3.       What if he decides not to return to work

4.       What if the Complainant wished to leave the company

They say that an email to the Complainant summarising the meeting was sent to him on the 20th July.

When asked to quantify his claim for redundancy/severance was he said €100,000.

They say that a further email was received from the Complainant on July 23rd 2017 with the following concerns:

1.            Date of appointment with the Occupational Specialist

2.            Input into plan for return to work

3.            Meeting to discuss an agreement

4.            Reassurance about return to work

5.            Threat of further disciplinary action

6.            Grievance Procedure

7.            Fitness for work and return to work

The Respondent responded on the 27th July 2017 with the following:

In addition to what the Occupational Specialist recommended the Company offered to:

•             Identify another cell for Complainant to return to

•             Shorten the initial weeks of the Complainant’s return to work

•             Pulled forward the meeting review

•             Provide details to the Complainant of available admin/desk jobs

•             Offer counselling to support the Complainant’s return to work

There followed further correspondence with the Complainant unsure about his ability and confidence to return to work and the Respondent giving reassurances of their commitment to work closely with the Complainant to make his successful return to work.

They say that on the 31st July 2017 the Complainant sent an email to the HR manager attaching his letter of resignation. Correspondence crossed in the post and on the 1st August 2017 the HR manager responded to the resignation letter from the Complainant with a registered letter concluding:

“In having an opportunity to review its contents (the letter from the HR manager of the 31st July 2017) I am providing you with the opportunity to reconsider your resignation and hope that you will. I would appreciate a response by Friday the 4th August 2017 and I remain available to meet with you.”

They say that the Complainant responded that he felt he had absolutely exhausted all avenues of having a successful return to work and would not risk his mental health again in doing so. He felt it was in his best interest to move on. He concluded his email by saying “I would appreciate it if you would respect my decision and process my resignation as soon as possible as this is preventing me claiming my entitlements and I have been without an income for almost 4 years now. Thanks for your time on this matter.”

The Respondent says they accepted the resignation at that point.

The Respondent goes on to deal with the legal and case law issues which they say supports their contention that no dismissal took place.

“ Constructive dismissal describes a situation where an employee resigns because the employer has committed a serious breach of contract. This may occur for example, where the employer fails to pay wages in accordance with the contract, or the employee feels that the actions of the employer towards him or her are so unacceptable that there is no alternative but to leave employment.

In the first instance, the Respondent emphasises that the burden of proof is on the employee to clearly show that they were justified in terminating their employment.

This burden of proof is a high one, and established case law has identified two key components or tests which the employee’s case must satisfy. These emanate from a seminal decision from the Supreme Court in 2009, Berber (respondent) v Dunnes Stores Limited (appellant), [2009] 20 E.L.R 61.   These are known as the contract test and the reasonableness test.”

Under the ‘Contract Test’ they point to the case of Western Excavating Ltd. V Sharpe (1978) where the decision included the following:

“ 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 as discharged from any further performance”.

They deal with the Reasonableness Test with the following definition:

“The reasonableness test asks whether an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to tolerate it any longer and justifies the employee leaving”.

Quoting the decision in Berber v Dunnes Stores Limited [2009] 20 E.L.R 61, The Supreme Court stated:

‘In determining whether there has been a breach of the implied term of mutual trust and confidence in employment contracts:

1.            The test is objective.

2.            The test requires that the conduct of both the employer and the employee be considered

3.            The conduct of the parties as a whole and the cumulative effect must be looked at.

4.            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’.

Finally, the Respondent makes the following summary:

•             The claimant was absent on sick leave from 2013. In 2016, when the Company asked to meet him to discuss his medical status and possible return to work, he raised grievances against the company.   These related back to 2012 and 2013. The discussion regarding his medical status was put on hold as so to investigate his grievances.

•             The company took these complaints seriously and conducted a detailed investigation into the events. The complaints were not upheld.

•             The claimant was provided with an opportunity to appeal these findings which he did. The company appointed an external person to hear the appeal. The complaints were not upheld.

•             Due process was followed.

•             Following the completion of the investigation and appeal, the claimant was asked to attend for medical review to establish is fitness for work prognosis.

•             By his own doctor’s approval in the first instance, he was deemed fit for work. The Occupational Specialist review also confirmed this. His return to work date of 17th July 2017 was agreed and preparations began.

•             The only accommodation required related to the return to work was that it would be phased. Its noteworthy that the Occupational Specialist and not the claimants own doctor who recommended this.

•             The company were considerate about how best to integrate the claimant back into the company. His absence of over 4 years was considerable. To support his return, they put in place a number of support measures including re-training, medical review and direct linkage with HR to ensure his progress could be supported in the best possible way.

•             As the 17th July approached, the claimant began to ask for further accommodations. The company considered these and provided options for the claimant to move to another area, to bring forward his medical review etc. These were done to support the claimant in what he requested. It is important to note that these accommodations were not advised on medical grounds, rather they were based on requests by the claimant.

•             Despite offering numerous alternatives to the claimant he decided that he did not wish to return to work and tendered his resignation on 31st July 2017. It is important to emphasise that both his own doctor and the occupational specialist had deemed him fit for work.

•             The company provided further ‘options’ for the claimant and a cooling off period for him to reconsider his resignation.

•             He rejected these and made the decision himself to resign.

The Respondent says that this is not a case of constructive dismissal. The employer has behaved reasonably in accordance with the case law as set out in both the contracts and reasonableness test.

The Respondent investigated the complaints lodged by the Complainant, though they were not formally lodged as complaints when the issues complained of allegedly occurred. The Respondent went that step further in arranging the external appeal following the Complainant’s rejection of the outcome of the initial appeal.

The Respondent went to considerable lengths to make the Claimant’s return to work as comfortable as possible. They took into account the recommendations of the Complainant’s medical advisers and their own occupational health advisor. One of the medical reports, presented at the hearing, informed the hearing that “[the complainant] explains to me that he has been suffering from personal stresses of a confidential manner for the past few years”. The Respondent, nonetheless, kept his position open to him despite his extensive absence.

Despite all of this he finally expected to receive a payment of €100,000 when he asked for a severance package when he wished to terminate his employment. This was 4-times his annual salary at the time he left the company on sick leave.

I accept the tenets of the case law advanced by the Respondent under both the “Contract Test” as articulated in Western Excavating Ltd v Sharpe (1978) and the “Reasonableness Test” articulated in Berber v Dunnes Stores Limited [2009] 20 E.L.R.

Constructive Dismissal describes the situation where an employee resigns because the employer has committed a serious breach of the contract of employment, or the employee feels that the actions of the employer towards him are so unacceptable that there was no alternative but to leave the employment.

There a high burden of proof on the Complainant to clearly show that they were justified in terminating their employment.

This burden has not been discharged in the present case.

I find that the complaint fails.