Complainant

Respondent

Anonymised Parties

Plasterer

Construction company

Representatives

Operative Plasterers & Allied Trades Society of Ireland

Company representatives.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016640-001

04/01/2018

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

CA-00016640-002

04/01/2018

The complainant lodged a complaint of unfair dismissal and a complaint of a breach of section 3 of the Terms of Employment Information Act, 1990 against the respondent on 4/1/18 .

He commenced employment with the respondent as a plasterer on 12th of September 2016 .The employment was uneventful until the 10th of October 2017 when the complainant reports that the respondent’s foreman physically attacked him.

The complainant submitted a complaint about the foreman’s conduct through the grievance procedure.

He states that he was constructively dismissed on 7/11/17.

He earned €624 gross for a 39 hour week.

CA-00016640-001.

The complainant did not receive a statement of his terms and conditions of employment contrary to section 3(1) of the Terms of Employment (Infrormation ) Act , 1994. The complainant invokes the decision of the ECJ in Von Colson and Kamann(1984), ECR 1891 which decided that compensation for a breach of a statute- itself derived from an EC directive - must be of an amount which acts as a deterrent. The complaianat seeks the maximum compensation allowable under the 1994 Act.

CA-00016640-002

The complaianat worked as a plasterer with the respondent since September 2016.

Whilst attending work on the 10th October2017, the respondent’s foreman questioned the complainant about the amount of work that he had a completed on that date , used vulgar language and only to the complainant and not to his colleague. The complainant advised that completion of the work was delayed as he had to remove a significant amount of rubbish before each plastering session commenced. The complainant and his work colleague only received an a half an hour break for their 8 hour shift and they felt that they could no longer continue in that manner . The foreman became angry and and shouted down the stairs “I'll f…..g remember this “. The complainant was upset by this remark.He followed the foreman out to the van, opened the passenger door and he asked the foreman what is going on. A heated argument ensued. The claimant again expressed the view that because of the condition of the house it was impossible to complete the task on time and he had to leave at 5 o'clock as they were never paid for overtime . At this point the foreman lunged actross the seat, grabbed the complainant by the throat and stated that he was going to “f…..g kill him”. The complainant grabbed   the foreman’s arms in an attempt to push him away. The foreman drove off.

The complainant rang the respondent to let him know what it happened .Ten minutes later the foreman drove back to the site and apologised to the complainant. In his apology he stated that he had been under pressure to have the house finished and he was stressed. The complainant advised the foreman that he wasn't entitled to attack him, he wasn't going to be bullied into working extra hours for no pay as this was becoming the norm within the employment .The complainant advised the foreman that he did not accept his apology.

The respondent began an investigation two weeks after the incident.

The union met the respondent on the the 13th of October 2017. The complainant advised that he was activating the grievance procedure. No employee handbook was given to the claimant at any stage during the passage of this complaint nor was he given a copy of any disputes procedure.The complainant asked the company to forward him all documents concerning his employment within 40 days . No information was furnished to the complainant .

The complainant went to his doctor following that meeting. A medical report from the doctor was submitted.The doctor found two small marks in "on the anterior of the right upper arm ..and he has a small faint thumb mark on the left side of the neck” . The complainant submitted a medical cert from his doctor to the respondent advising that he was unfit to work from 13 october until 3 November as he was suffering from work related stress.

The complainant received a letter on the 18th of October inviting him to a meeting to investigate “alleged fighting” at the site on the 10th of October. It was put complainant that he was involved in a physical fight and the letter went on to say that the purpose of the investigation is to enquire into the reports received and seek to ascertain “if fact if in fact you have a case to answer or not. ". This upset the complainant who now found himself characterised as the aggressor.

The meeting took place on the 24th of October 2017 and the complainant gave his version of what happened on 10 October. A draft minute was supplied to the union , on the 31st of October. The union responded on 7 November advising of a number of errors and omissions and that the complainant was going to correspond with the respondent under separate cover. The complainant submitted his resignation on 7 November in circumstances where the respondent acted in such a manner so as to repudiate the contract. The claimant acted reasonably in all the circumstances affecting his dismissal.

The union representative states that the complainant’s decsion to resign must be seen in the context of the failure of the respondent to meet their obligations under the Safety, Health and Welfare at Work Act, 2005 . He refers to the implied   terms in all contracts which guarantee a safe system of work. The union adverts to the practical steps which must be taken to effect this term, provided for under section 8(1) of the 2005 Act which states that

“every employer shall ensure so far as is reasonably practical the safety health and welfare at work of his or her employees and

(2)without prejudice to the generality of subsection( 1 )the employers duty extends in particular to the following:

managing and conducting work activities in such a way as to ensure as far as is reasonably practical the safety health and welfare at work of his or her employers,

(b) managing and conducting work activities in such a way as to prevent , so far as is reasonably practicable , any improper conduct or behaviour likely to put the safety , health or welfare at work of his or her employees at risk”

The union representative also refers to the employer’s obligation to provide a place of work in its “design, provison and maintenance “.

When the foremen arrived at the site on 10 October he had no interest in the welfare of the complainant nor the condition in which they were working or whether they had received a break. No safety induction training was given to either employee. Each property is different and may contain different health and safety issues.

Section 19 of the 2005 Act obliges the respondent to conduct a risk assessment. This was not done.

Section 27 of the Act of 2005 protects an employee against penalisation. Section 27. 1(e) includes “coercion n or intimidation “ as an instance of penalisation.

The complainant was intimidated when the foreman lunged at him and threatened to kill him on the 10th of October.

Section 1 (b) of the Unfair Dismissals Act comprehends this complaint.

The employer behaved in such a manner as to repudiate the employment contract. The complainant wanted a safe system of work as provided for under section 8 of the 2005 Act. He   raised health and safety concerns with the respondent’s agent by lawful means. He was assaulted without warning. The claimant phoned the Respondent and explained the events that occurred on the10 October. He implemented the grievance procedure and attended a meeting on 13th October. He received no indication as to when the matter would be finalised nor whether a disciplinary process was to be initiated.

He waited a month before submitting his resignation as it was further proof to him of the respondent’s failure to investigate the assault in a timely manner.At the meeting of the 24th of October, the claimant became aware of the email dated the 10th of October from the foreman. The union contends that this report was not written on the same day .The complainant had a lawful right to challenge the foreman’s contention that he was not performing in his duties considering the conditions of the site.

Because the respondent failed to provide a safe place of work, the complaianat was entitled to resign.

The complaiant relies on Paris Bakery & Pastry Ltd v Igor Mrzljak DWT 1468/2014. In that case the complainant after having worked a 12 hour shift complained about the absence of a break , was headbutted and left the workplace never to return. The Labour Court found that the claimant had a statutory right to a break and cited section 26(1) of the Organisation of Working Time Act, 1997 which states

“An employer shall not penalise an empolyee for having in good faith opposed by lawful means an act which is unlawful under this act” and provides “that if the penalisation amounts to dismissal, then relief is not available under both the 1977 Act and the 1997 Act”.

The complainant states that the assault on him constituted a breach of his contract. In additon and /or in the alternative the respondent’s behaviour was so unreasinable as to leave the complaianat with no choice other than resignation.

The complaianat requests that his complaiant be upheld and that he be awarded compensation that is just and equitable.

CA-00016640-001.

The respondent accepts that due to an unintentional error the complainant did not receive a statement in compliance with section 3(1) of the Terms of Employment (Information) Act, 1994.The respondent requested that the unintentional nature of the omission plus the complainant’s absence of a request for the statement during the entirety of his employment be factored in to the adjudicator’s conclusions.

CA-00016640-002.

The dismissal is contested.

The respondent employs about 20 employees in its construction projects.

The respondent accepts that there was an altercation between the complainant and the foreman on the 10 October. What is not clear to the respondent is who initiated the incident. The foreman’s evidence to the respondent in a written report dated 10 October is that the complainant undertook to have a certain amount of plastering completed by 3pm and when that was only partially completed, and upon being questioned by the foreman about this, he spoke in an aggressive way. The respondent advises that the foreman states that the complainant initiated the physical contact by poking him in the chest while seated in his van.

The respondent made efforts to address the matter. On 10 October the complainant notified Mr G., senior quantity surveyor that he had been “grabbed by the throat and thrown up against a wall” Headvised the complainant to report the matter to the Gardaí. About an hour later the complainant’s union contacted the respondent. Mr. G. 1 and Mr G. 2 met the complainant and his union the following morning, the 11 October. The respondent states that the complainant did not give a clear chronology of events but did state that the foreman had grabbed him by the throat and had stated” I’m going to f…..g kill you”. When asked by the respondent if he felt his life was in danger the respondent states that the complainant said “.no, not really” The union representative recommended that the foreman be suspended on full pay pending a full enquiry. He requested a copy of the company’s disciplinary procedures. The respondent asked the union representative what would resolve the matter and the response was “money”.

Following the meeting Mr G 1 and Mr H, the managing director, agreed that it was best to move the complainant to another site on which Mr H was the project manager. Both men made repeated calls to the complainant over the next number of days to arrange for his transfer but they state that he was uncontactable. The union representative submitted a sick cert on behalf of the complainant on the 13 October which was effective until 3 November

The respondent then engaged a HR consultant, Mr O to investigate the incident. He wrote to the complainant on 18 October inviting him to a meeting on the 23 October. The complainant agreed to attend a meeting on the 24 October. Mr O and the office manager interviewed the complainant and the alleged perpetrator on the 24 October. They telephoned the other employee who had been on the site on the 10 October; he stated that he had no information to offer. They interviewed the foreman on the same date. At that meeting the complainant advised Mr O that the respondent was doing the right thing in relation to the incident of the 10 October through the investigation process. A draft minute of the meeting was emailed on the 31 October. Amendments were submitted by the complainant’s representative on 7 November. The complainant’s letter of resignation was submitted to the respondent on the 8 November.

The complainant denied the respondent the opportunity to complete its investigation as the complainant resigned on the 7 November a month following the incident of the 10 October.

The reasonableness test asks if the employer’s conduct was so unreasonable as to leave the employee with no other option but resignation.

The respondent relies on the dicta of Bristow J in Weatherall (Bond St W1) v Lynn (E.A.T.)1 which states that it is the facts which should guide you as whether “the employer so conducts himself as to show that he does not intend to be bound by the contract of employment (and ) the employee is entitled either , at his option, to treat the contract as at an end, and cease performing his par……The question of what is reasonable in the circumstances having regard to equity which has to be considered in cases of unfair dismissal, applies equally to the facts….. It is the conduct of the employer which you must look at”

The respondent asserts that they took steps to investigate and rectify the situation. They wanted to relocate the complainant. He resigned before they had a chance to complete their investigation.

The respondent also relies on Zdenek Hrdlicka v Andrew Best Roof Ltd (2016) IE HC 354, a case involving a complaint of negligence against an employer who had failed to protect his employee from attack by a fellow employee. The court held that the defendant was not negligent. In that case the employer was aware of the “bad blood” between the parties whereas in the instant case the relationship between the complainant and the foreman was, to the respondent’s knowledge, a good one and hence they could not have anticipated the alleged incident of the 10 October.

The respondent maintains that they have fulfilled their obligations under the 2005 Act and that they did act to ensure as far as is reasonably practicable that a safe place of work was provided.

The respondent believes that it is as likely as not that the complainant initiated the incident.

They request the adjudicator to accept that its actions were not such as to warrant the complainant’s resignation.

CA-00016640-001.

I find that the complaint of a breach of section 3 (1) of the Terms of Employment(Information) Act,1994 is well founded. The onus lies with the employer to implement its terms.

CA-00016640-002The Law.

Constructive dismissal is defined in s 1. of the act, as

“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 is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

The burden of proof rests with the complainant in a complaint of constructive dismissal. The tests for constructive dismissal were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

“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”.

The reasonable test was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected t put up with it any longer, the employee is justified in leaving”

The proofs which the complainant must advance to prove his case are that the behaviour of the respondent and of which he complains corresponds with the requirements laid out in one or both of the two tests and was behaviour which left him with no option other than resignation

Did the respondent’s behaviour meet the threshold of behaviour so intolerable as to conclude that resignation was the only option?

The complainant’s evidence concerning his decision to resign was that he was penalised for having exercised his right to seek a safe working environment. The act of penalisation was the foreman’s alleged intimidation and coercion of him on the 10 October. This was in retaliation for his statement on the same date that he was entitled to a safe working environment free of rubble and obstructions; one where he could complete his work in time. The investigator’s report of 24 October notes that the complainant described the rubble and clutter as “awkward”. While I can accept that premises strewn with rubble would be a nuisance, that is a different matter to elevating it to a definite breach of the 2005 Act. The rubble was there previously and there was no evidence that the complainant had raised this as health and safety matter. It is an unproven contention, unexamined by the competent authorities and I, therefore, cannot accept that it was a breach of the complainant’s contract. There is a conflict of evidence as to the facts of the assault and the complainant resigned before the investigation concluded. The decision in Paris Bakery & Pastry Ltd v Igor Mrzljak DWT 1468/2014 and relied upon by the complainant is distinguishable. In that case the uncontested sworn evidence of the complainant was that his assertion of a prescribed statutory right ( a right to rest periods) prompted the physical assault, whereas in the instance case the assault is contested, the investigation into same aborted by the complainant’s resignation and the right asserted to a workplace free of rubble, a right previously not asserted, is not a prescribed right.

Was the respondent’s behaviour so intolerable as to merit the complainant’s resignation.?

An assault in the workplace is never acceptable. The respondent was presented with a counter complaint by the foreman against the complainant. They had an obligation to investigate these conflicting complaints.

The respondent advised the complainant to report the matter to the Garda, met the complainant with his union representative the following day, immediately engaged a HR consultant to investigate the incident as they stated that they had no prior experience of facing such incidents, arranged a meeting with the HR consultant within 2 weeks of the incident, attempted to move him away from that site. The complainant had been uncontactable and had been on certified sick leave from 1 October until 3 November. The complainant stated in the meeting with the investigator on the 24 October that he had no confidence in the ability of the respondent to provide a safe working environment while the investigation was still in train.

He submitted his resignation on the 7 November when the amendments into the report of the meeting with the investigator had been submitted on the same date.

I find that the complainant gave the respondent insufficient time to allow the investigation to produce conclusions or rectify the matter.

The evidence does not support the complainant’s contention that he met one or both tests necessary to sustain a complaint of constructive dismissal. I do not find that the respondent repudiated the contract of employment. I do not accept that the respondent’s behaviour was so intolerable as to merit the complainant’s resignation.

I do not uphold his complaint that he was constructively dismissed.

CA-00016640-001.

I find the complaint is well founded. I decide that the respondent should pay the sum of €1,872 which is equal to 3 weeks wages as compensation for this breach of the complainant’s statutory rights.

CA-00016640-002.

I do not find this complaint of constructive dismissal to be well founded.

Constructive dismissal; Resignation before an investigation into the complaint concludes.