UDD1818

The Adjudication Officer, in a decision made on 5^thApril 2017, decided that the complaint was not well founded and that it failed.

The appeal to this Court was received on 5^thMay 2017.

The fact of dismissal is in dispute.

Background

The Appellant was employed by the Respondent from 29^thApril 2013 until the date he claims his employment terminated on 10^thJune 2015.

A number of work related incidents and interactions had taken place between the Appellant and the Respondent up to and including the end of 2014. At a meeting in December 2014 between the Appellant and two Directors of the Respondent the parties discussed the matters which had arisen prior to that date.

Further interaction between the parties on 27^thFebruary 2015 resulted in a meeting between the Appellant and the two Directors of the Respondent on 2^ndMarch 2015.

Following that meeting e-mail contacts between the Appellant and the directors of the Respondent ensued. The Appellant supplied a medical certificate on 9^thMarch 2015 which certified that he was suffering from stress and was unfit for work until 22^ndMarch 2015. The Appellant attended his own doctor on 23^rdMarch 2015 and supplied a medical certificate covering the period to 29^thMarch 2015.

The Appellant attended the Respondent’s doctor at the request of the Respondent on 25^thMarch 2015. That doctor compiled a report for the Respondents as a result. That report certified to the Respondent that the Appellant was suffering an acute crisis in relation to perceived work-place stress and was unfit for work and likely to continue to be so for as little as one month and as much as six months.

The Respondent’s Doctor, in that report, stated that it would be important to address the perceived stressors at work before he returned to work and the doctor suggested a process of external mediation.

On 10^thApril 2015 the Appellant’s legal representative wrote to the Respondent stating that the treatment which the Appellant had received from the two Directors of the Respondent since 2013 had caused his absence from work as a result of stress and anxiety. The Appellant’s representative, in that letter, invoked the Respondent’s Bullying and Harassment policy on behalf of the Appellant and advised that the Appellant’s medical doctor had certified him as medically able to participate in an investigation of his complaint of bullying and harassment against two Directors of the Respondent.

The Respondent’s Bullying and Harassment policy is clear in its terms. That policy commits the Respondent to take particular actions in response to a complaint of bullying or harassment. In particular, the policy commits the Respondent to initiating an investigation by appropriate management or, if management are the subject of the complaint, by an independent party appointed for the purpose. That policy sets out timelines and procedures which will be followed upon receipt of a complaint.

On 20^thApril 2015 the Respondent wrote to the Appellant stating that the Respondent would await the Appellant’s return to work ‘at which stage we can meet and discuss any issues you may have in line with your contract of employment’.

The Appellant’s legal advisers responded to that letter on 15^thMay 2015 re-iterating the request for the commencement of a process as requested in his previous letter and confirming that the Appellant was fit to participate in such a process.

The Appellant had received no response to that letter by 10^thJune 2015 and on that date, by letter, notified the Respondent that, because it was clear to him that that the Respondent had ‘no intention of affording him his contractual entitlement to have his complaint investigated’, he was resigning his employment with the Respondent effective immediately and advising that he regarded himself as constructively dismissed.

On 17^thJune 2015 the Respondent replied to that letter indicating that no formal statement in writing had been received from the Appellant as regards alleged bullying and harassment and indicating that upon receipt of such a statement a process would be initiated.

Summary Position of the Appellant

The Appellant submitted that, arising from his contract and the basic requirements of fair procedure, he had an entitlement to have his legitimate and serious complaint of bullying and harassment investigated by the Respondent. He submitted that the Respondent had repeatedly and deliberately failed to comply with its own procedures following requests from him to initiate those procedures. The Appellant submitted that those failures left him in a position whereby it was perfectly reasonable for him to ultimately resign from his employment.

The Appellant submitted that he had repeatedly made informal complaints of bullying and harassment and ultimately was unable to continue working as a result of stress. The Appellant referred to the Respondent’s own doctor’s report which advised that the issues giving rise to perceived stress should be addressed prior to his return to work from the period of sick leave which had commenced in March 2015.

The Appellant submitted that the failure of the Respondent to initiate a procedure in line with the Bullying and Harassment policy following the invocation by him of that policy in letters dated 10^thApril 2015 and 15^thMay 2015 left him with no option but to resign.

Summary position of the Respondent

The Respondent submitted that issues with the Appellant’s performance started arising in 2014 and that this resulted in one or other of the two directors of the Respondent talking to the Appellant over time about the fact that he was not getting reports in on time, his attendance at work, his attending at work out of uniform and his use of skype and his mobile phone during working hours. The Respondent submitted that these matters were disrupting the completion of work. In addition, the Respondent submitted that the Appellant constantly requested advances of salary and looked for pay rises.

The Respondent submitted that these matters resulted, in December 2014, in a meeting between the Appellant and the two directors of the Respondent.

The Respondent submitted that, in the view of the directors, this meeting was a positive one. A pay rise was afforded to the Appellant and the Respondent expected a much more positive approach from the Appellant in 2015.

In January 2015 the Appellant requested that he be allowed to work from home for two days each week and that request was declined. A range of issues arose in February 2015 including the Appellant’s abrupt departure from the workplace one day and in addition a failure to follow up work on a site on another occasion.

The Respondent submitted that events on 27^thFebruary 2015 resulted in a meeting on 2^ndMarch 2015 between the Appellant and the two directors wherein the directors expressed dissatisfaction with various aspects of the Appellant‘s performance and communication.

The Respondent submitted that the Appellant was absent from work on sick leave from 9^thMarch and that certificates were received addressing the period up to 29^thMarch 2015 but that none had been received thereafter.

The Respondent submitted that the Appellant had been required to attend a doctor appointed by the Respondent on 25^thMarch 20015 who confirmed that the Appellant’s absence was likely to be lengthy. That left the Respondent with a requirement to plan for that absence.

The Respondent submitted that it was surprised to receive the Appellant’s letter of 10^thApril 2015 and took advice as to how to reply. That advice led to the letter of 20^thApril 2015.

The Respondent submitted that the letter of 15^thMay from the Appellant was a surprise to the two directors contending as it did that the Appellant had raised concerns at his treatment by the two directors.

The Respondent submitted that at about this time it had come to its attention that the Appellant was working in another business while certified as unfit for work with the Respondent. The Respondent engaged a private investigator to visit that business. That investigator established that the Appellant was actively and fully involved in the business and advised the Respondent that the Appellant had stated that he was a shareholder in the business.

Following receipt of the Appellant’s letter of 10^thJune 2015 the Respondent received advice from its HR adviser and that advice resulted in the Respondent’s letter of 20^thJune 2015.

The Respondent submitted that the Appellant had never formally raised a grievance as regards bullying and harassment. The Respondent further submitted that the Appellant had produced no medical certification after 29^thMarch and that the reason he did not do so was because he was not unfit for work and in fact was working with another business at that time.

Summary testimony on behalf of the Appellant

The Appellant gave evidence as to difficulties he had working with the two directors of the company dating from September 2013. He gave evidence as regards continuing challenges and difficulties in the relationship which he characterised as bullying and harassment and which he said caused him stress over a prolonged period.

He said that an interaction took place on 27^thFebruary between himself and a director of the company which was of a nature that he felt it necessary to e-mail both directors to refer to the use of harsh words and ‘bully boy’ tactics and to say that the interactions were having an effect on his nerves.

He said that at a meeting on 2^ndMarch one Director had apologised for the tone of the engagement on 27^thFebruary.

He gave evidence to the effect that his experiences over a long period had led him to feel depressed and stressed. He said he went to his own doctor in March and that his own doctor had certified him as unfit for work from 10^thMarch onwards.

He said that he had carried out some work for a friend of his in the evenings but he had not been paid for that work. He said that the Respondent had never raised an issue as regards this matter while he was in employment or afterwards until the hearing of his complaint by an Adjudication Officer of the Workplace Relations Commission. He said that he did not leave this employment to work with this other company. He said that he never advised the person who turned out to be an investigator of the Respondent that he was a shareholder or actively involved in his friend’s company.

He said that he had, through his legal adviser, invoked the Respondent’s Bullying an Harassment policy by letter of 10^thApril 2015 and that no steps had been taken by the Respondent to initiate the policy by 10^thJune 2015 despite a further letter requesting the commencement of an investigation dated 15^thMay 2015. He said that at that point he was absent through stress related illness from his work and could no longer tolerate the absence of pay while awaiting an indication from the Respondent that the Bullying and Harassment policy would be initiated. He said that the stress he suffered related to his experience of bullying and harassment by the two directors of the Respondent and the failure to investigate his complaint meant that no resolution to that matter could be found. He said that he was in a position to work in another environment with another employer but not with this employer in the absence of a resolution of his complaint of bullying and harassment.

Evidence of behalf of the Respondent

The Respondent tendered evidence by an accounts person who stated that issues had arisen as regards the Appellant’s pay but those issues were related to an overpayment in 2013 based on the payment of a 13^thmonth.

The two directors gave evidence to the effect that there had been issues between the Respondent and the Appellant leading up to a meeting in December 2014 between the Appellant and the two directors. The directors both gave evidence to the effect that the meeting in December 2014 had cleared those issues and that going forward from that meeting matters were considered by the Respondent to be positive. The Respondent considered that all parties had a shared understanding as to how work would be carried out.

Evidence was given that the Appellant had sought a facility to work from home on two days per week in early 2015 and that was refused for business reasons.

Evidence was given that a call was received from a client on 27th February 2015 wherein the client made a complaint regarding a fault arising from work on their premises for which the Appellant was responsible. The client premises was a site for which the Appellant was responsible. Mr F, a director, stated that a phone call had taken place between himself and the Appellant in relation to the matter on 27^thFebruary. Mr F stated that the phone call was argumentative and heated. At the end of that call a meeting was arranged for the following Monday 27^thFebruary 2015. Mr F stated that this was not a disciplinary meeting.

Evidence was given to the Court that Mr F apologised to the Appellant in respect of the interaction on the previous Friday at the meeting on 2^ndMarch.

Evidence was given that the appellant had stated at the meeting that he believed that both directors were bullying him.

The directors gave evidence that upon receipt of a letter from the Appellant’s legal representative dated 10^thApril 2015 seeking to invoke the Respondent’s Bullying and Harassment policy the Respondent took advice on the matter and that advice led to the issue of the Respondent’s letter of 20^thApril.

Evidence was given that a further letter was received, dated 15^thMay 2015. At or about that time the Respondent had become aware that the Appellant was allegedly engaged in other work while he was certified unfit for work with the Respondent. The Respondent engaged an investigator to examine that matter. Following receipt of the Appellant’s letter of 10^thJune 2015 further advice was taken.

The Respondent did not reply to the letter of 15^thMay 2015 until 17^thJune 2015.

The Court also heard evidence from a private investigator who had been employed by the Respondent. That investigator stated that he had encountered the Appellant carrying out work in another company and concluded from his interaction with him at that company that he was actively involved in that company.

The Law

Section 1 of the Unfair Dismissals Acts 1977 -2007 defines dismissal as: -

• (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;

Discussion and conclusions

It is well-settled law that a complainant who is advancing a claim of constructive unfair dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer.

As the Appellant is alleging constructive dismissal, the fact of dismissal is in dispute. Thus the onus of proof rests with the Appellant to establish that the actions of the Respondent were such as to justify his terminating his employment.

In the instant case the Appellant claims that the failure of the Respondent to take action following two requests for the initiation of the procedure set out in the Respondent’s Dignity at Work policy constitutes behaviour of such an unreasonable nature as to leave him no alternative but to consider himself constructively dismissed.

It is common case that the Appellant, through his legal adviser, requested the initiation of the procedure outlined in the Respondent’s Bullying and Harassment policy in letters dated 10^thApril 2015 and again on 17^thMay 2015. It is not in dispute that the Appellant had been certified as unfit for work due to stress with effect from 10^thMarch 2015. It is also undisputed that, the Appellant having attended the Respondent’s doctor on 25^thMarch, the Respondent was advised by that doctor that the Appellant was unfit for work and likely to be so for some time. The same doctor’s report recommended that the Appellant’s perceived workplace issues should be addressed before his return to work.

Notwithstanding this context for the Appellant’s subsequent requests for the initiation of the prescribed procedure to address his claims of alleged bullying and harassment, no such procedure was initiated. In fact, no reply at all was received by the Appellant to his request of 17^thMay in advance of his notification on 10^thJune 2015 that he was terminating his employment.

Much emphasis has been laid by the Respondent on the Appellant’s work performance prior to his leaving the employment on sick leave. Similarly, the Appellant has claimed that he was bullied and harassed by two directors of the Respondent for a period of years prior to the termination by him of his employment.

The Court notes that the Respondent has in place a comprehensive policy providing for various responses to complaints of bullying and harassment. There is no dispute that the Appellant made complaints of bullying and harassment. It is similarly undisputed that no steps were taken to deal with those complaints prior to the termination by the Appellant of his employment.

It is not for this Court to make findings as to whether or not the Appellant was bullied or harassed by two directors of the Respondent. The Court simply draws the factual conclusion that no investigation of such complaints ever took place.

The Court finds that the allegations that the Appellant was working in another location while unavailable through illness to work at the Respondent’s location was never put to the Appellant while he was in his employment of the Respondent. The Court also finds that any suspicion of that nature which the Respondent may have held between 10^thApril 2015 and 10^thJune 2015 did not prevent the Respondent in that period from dealing with the Appellant’s complaints of bullying and harassment in the manner set out in the Respondent’s own procedures.

The Court finds that the fact that the Respondent wrote to the appellant on 17^thJune 2015, seven days after the date of the alleged constructive dismissal, is not relevant to the Court’s consideration of the complaint that the Appellant was entitled to terminate his employment and to regard himself as unfairly dismissed on 10^thJune 2015.

The Court notes hat the Respondent failed to initiate the procedure set out in its own Bullying and Harassment policy notwithstanding its’ own doctor’s assertion in his report that matters perceived to be causing stress to the Appellant in his workplace should be addressed prior to his return to work.

The question for the Court to decide is whether, because of the conduct of the Respondent, the Appellant was entitled, or it was it reasonable for him, to terminate the contract of employment.

In all of the circumstances the Court finds that the Respondents’ failure to initiate the policies in place in the employment between the period of 10^thApril and 10^thJune 2015 constitutes behaviour of such a nature by the Respondent that it was reasonable for the Appellant to terminate his employment.

The Court finds that the appellant was unfairly dismissed. The Court finds that the appropriate redress is compensation. The court has received details as regards the Appellant’s loss arising from his dismissal and his attempts to mitigate that loss. The Court notes that in some respects the level of detail supplied does not demonstrate clearly the Appellant’s income in the period since his dismissal or his efforts across that entire period to mitigate his loss. Taking these factors and the parties’ submissions into account, the Court measures the appropriate compensation in this case at €17, 500.

Determination

The appeal is allowed and the decision of the Adjudication Officer is set aside and substituted with this Determination. The Court orders the Respondent to pay the Appellant compensation in the sum of €17,500.

The Court so determines

Signed on behalf of the Labour Court



Kevin Foley
CR______________________
15 March, 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.