ADJ-00005608

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ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005608

Anonymised Parties A Worker A Security Firm

Complaint(s):

Act

Complaint/Dispute

Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace

Relations Commission under section 27 of the

Organisation of Working Time Act, 1997

CA-00007805-001 25/10/2016

Complaint seeking adjudication by the Workplace

Relations Commission under Section 8 of the Unfair

Dismissals Act, 1977

CA-00007805-002 25/10/2016

Date of Adjudication Hearing: 27/06/2018

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 27 of the

Organisation of Working Time Act 1997 of the and/or Section 8 of the Unfair Dismissals Acts, 1977 -

2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired

into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present

to me any evidence relevant to the complaint(s)/dispute(s).

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The respondent’s representative indicated his intention to make further submissions on the claimant’s

constructive dismissal complaint and sought an extension of time to furnish same because of illness.

In the event no further submissions were received after the hearing.

Summary of Complainant’s Case:

1. Complaint under the Organisation of Working Time Act 1997 -

Claim reference CA-00007805 -001

The complainant claims that he is owed holiday pay and pay in respect of Bank Holidays

for the period from the 11th of February 2015 until the 1st of August 2015 (24 weeks

approximately). The accrued holiday entitlement is 10 days. In addition thereto the

complainant claims entitlement to be paid for the Public Holidays between the 10th of May

2015 and April 2016. There were 9 Bank Holidays

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The Claimant relies upon article 7 of directive 2003 /88/EC. The purpose of the directive,

and indeed the directive that proceeded it, was to lay down specific minimum safety and

health requirements for the Organisation of Working Time. Article 7 thereof provided that

Member States shall take "the measures necessary to ensure that every worker is entitled

to paid annual leave of at least 4 weeks in accordance with the conditions for entitlement

to, and granting of, such leave laid down by national legislation and or practice". In Ireland

article 7 is implemented by Section 19 of the Organisation of Working Time Act 1997. The

relevant case is the joined cases of Stringer and Schultz-Hoff. In the Stringer case the

ECJ decided that the exercise of an employee's right to annual leave under national law

cannot be made subject to a requirement to have worked during the relevant leave year.

When the Stringer case was referred back to the UK Courts, the House of Lords in

determining the matter decided that, to give effect to the ECJ's decision, the UK's

\Working Time Regulations 1998 must be interpreted as allowing employees on long-term

sick leave to take and be paid in respect of their statutory holiday entitlement.

2. Complaint under the Unfair Dismissals Act 1977 - claim reference

CA-00007805-002

The Claimant was left with no option to resign. The actions and inactions of the

Respondent Employer effectively forced the Claimant to resign.

The details of the complaints against the Respondent Employer are as follows:

a. Prior to the ending of his employment the Claimant had worked for 16 years with the

Respondent and was a Senior Engineer. In or about2014 following the takeover by the

Respondent of another Company the Claimant's Line Manager's attitude to the Claimant

changed radically. Changes were unilaterally introduced without consultation by Mr. BD

and Mr. BD attempted to re-interpret the terms and conditions of the Claimant's Contract

of Employment. Prior to the merger the Claimant was relatively autonomous. When the

Claimant complained about the changes to the work practices and the attempted reinterpretation

of the terms and conditions of the Contract Mr. BD simply responded by

dismissing his concerns and advising him that "you will do it if I tell you". Further, he was

aggressive towards the Claimant. He shouted at him and threatened him.

b. Mr.BD started to micro-manage the Claimant's daily workload. He failed, refused or

neglected to give the Claimant adequate instruction in order to enable the Claimant

complete the job requiring him to constantly revert for up to date instructions. This lead to

jobs taking longer and increased pressure on the Claimant. The Claimant mentioned this

to Mr.BD and Mr. MC. Mr. BD’s reaction to the legitimate complaints lead to a complete

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breakdown in communications between the Claimant and Mr.BD. His work became more

pressured and more stressful. Mr.BD was aware of the Claimant's medical condition and

the fact that he was suffering from high blood pressure. Despite that he ignored the

Claimant's complaints about the difficulties being caused at work.

c. On one occasion in January 2015 when the Claimant complained about the threatening

and aggressive manner in which he was being dealt with by Mr. BD, Mr.BD withheld the

Claimant's country money allowance. When the Claimant raised it with Mr. BD he shouted

and roared across the table at him. The country money allowance was eventually

reinstated.

d. The Claimant pointed out to Mr.BD that the quality of the specifications and information

provided to the Installation Dept. needed to improve as the poor quality of the

specifications and information was causing ongoing difficulties with customers who were

frustrated. Further it added to the stress associated with the job. He was still expected to

get the job done within the expected timeframe despite the difficulties with the

specifications and information provided.

e. The Claimant was treated in a demeaning and disrespectful way by his Line Manager,

Mr. BD. He goaded the Claimant and tried to get a reaction from him. He was

confrontational in his conversations with him.

f. Mr. BD persisted in picking on the Claimant. For example, he took issue with the

Claimant utilising his own personal phone for work purposes. AII the Engineers used their

own personal phones and not the more basic Company phone.

g. The Claimant was excluded from meetings.

h. Due to an error the Claimant was refused access to a particular Bank site. Despite the

Claimant advising Mr. BD of the fact that this was an error/misunderstanding Mr. BD never

made contact with the Bank to sort the matter out. This was extremely upsetting and

distressing to the Claimant and wasn't resolved until the Claimant made direct contact with

the Bank himself.

i.The Lease on the Claimant's car was up in 2013. Mr. BD advised him that he would not

be getting a replacement car but rather a van. The Claimant objected to this and Mr. BD

ranted and raved, giving out to the Claimant. This was just another instance of Mr. BD

doing things that were designed to antagonise the Claimant and upset him.

j.The Claimant complained about the paperwork being given to him on the scope of works

and or customer expectations and the provision of the incorrect equipment for Contracts.

The Claimant ended up arriving at jobs without any documentation and with incorrect

equipment. He wasn't able to give Progress Reports back to the office because he didn't

know the entire scope of the job. All of this added to the stress at work and Mr. BD was

advised of this but had no regard for the Claimant's concerns.

k. Work was being scheduled for weekends without regard to the Claimant's availability or

other family commitments. If the Claimant indicated that he was having difficulty with a

particular weekend Mr. BD’s response to it was that he would "regret it". He felt that he had

no option but to agree to work. When the issues of weekend work were not being notified

to him in advance this was mentioned to Mr. BD and same was simply shrugged off. The

Claimant felt that this was very deliberate and unfair. The Claimant had no difficulty working

weekends once appropriate notice was given such that he could organise his family

life/weekends.

l. The Company and Mr. BD had no regard for the manner in which the Claimant was

ridiculed and humiliated and treated.

The above is a summary of some of the complaints and does not purport to set out

comprehensively all the complaints and the claimant reserved the right to furnish further

details at the hearing of the matter before the WRC.

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In his direct evidence the claimant gave his account of events leading up to his resignation.

His representative asserted that the respondent’s representative could not give evidence in

circumstances where there were no witnesses in attendance on behalf of the respondent.

The claimant asserted that the stress in the workplace had exacerbated his medical

condition and that he was out of work for almost 2 years. His payment had ceased in mid

July 2015. He contended that the respondent delayed in issuing him with a P45 and this

had delayed his efforts to commence a Start Your Own Business Course. The claimant’s

current salary was between €43,000-€44,000 while his annual income with the respondent

was in excess of €60,000.

The claimant asserted that he had been happy at work for many years but when the new company

took over he found his terms and conditions of employment came under attack. He asserted that

this coincided with the appointment of Mr. BD as Installation Manager and it was contended that

MR. BD took it upon himself to undermine the terms of employment and travel /subsistence

arrangements of engineers. He set out the disputes and submitted that allowances removed by

Mr. BD were subsequently restored by the respondent. He outlined his grievances with the new

PDA system which was to be pioneered by the claimant and his colleague – according to the

claimant a colleague who had refused to operate the system was issued with a final warning. The

claimant submitted that throughout these fractious times his blood pressure began to increase. He

went on to set out in detail his individual grievances with Mr. BD and submitted that his manager

operated on the basis that it was his way or no way and that their relationship disintegrated. He

submitted that it was impossible to communicate with Mr. BD. The claimant contended that he

had been compelled to download software to manage his work and that this was used to threaten

disciplinary action against him after he pursued his grievances against Mr. BD. While the claimant

acknowledged that he did not specifically ask Mr. PW to be interviewed as part of the investigation

into his complaints, the claimant stated that he assumed he would have been questioned. The

claimant said that when he went off sick, his GP had advised that his blood pressure was anxiety

related – he was unable to return to work because of his relationship with Mr. BD and the claimant’s

doctor had did not consider him fit to return. The claimant asserted that he had dealt with Mr. BD

for many years without difficulty and it was only when Mr. BD was promoted under Mr. DM that

everything changed and the bullying commenced. He indicated that he did not appeal the outcome

of the investigation as he had no confidence of a fair hearing – he stated that the appeal was to Mr.

DM who directed Mr. BD and that Mr. DM was part of the problem not the solution. The claimant

said he could not see any way forward. He felt he was given no consideration at his final meeting

with management; that there had been no acknowledgement of wrong doing by the company and

that he would be leaving himself wide open if he returned and faced a disciplinary hearing on his

return.

Under cross examination the claimant accepted that the dispute regarding country money had been

resolved through the intervention of the union. When he was challenged as to why he did not

exhaust internal procedures, he said the company had botched the grievance investigation and he

was dissatisfied with the process. He indicated he did not pursue an appeal because the

investigation simply produced an outcome without commentary other than a threat of disciplinary

action against him. The claimant said that he didn’t feel that mediation would resolve the work

problems or result in him getting back to work. He stated that he would have thought of it had it

been offered early on in the process. The claimant said he would have considered the reassignment

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offer if it had been offered 5 months earlier but at this point he felt the company were backing Mr.

BD.

In summing up, the claimant’s representative submitted that the change came about upon the

arrival of Mr. DM, that the investigation into the claimant’s grievance was fundamentally flawed,

that matters were affecting the claimant’s health and that the system was fundamentally flawed

and the outcome of having made a complaint was that the claimant was facing disciplinary action.

Summary of Respondent’s Case:

The respondent set out a chronology of the claimant’s employment history with the respondent –

both complaints were denied.

It was contended that the claimant had no entitlement to public holidays during the period

claimed as he had not been at work in the five weeks preceding the said time frame. It was further

contended that the claimant had no entitlement to annual leave for the period of February 2015 –

August 2015 – it was submitted that the legislation providing for the accrual of annual leave only

came into effect in August 2015 and that prior to this leave accrued against time worked only. It

was submitted that the company would process leave owed prior to his absence from work the

10th Feb 2015 i.e. 2 days and 15.75 days accrued during absence from work from August 2015 –

April 2016.

With respect to the allegation of unfair dismissal it was asserted that the claimant voluntarily

resigned from his employment.

It was submitted that following a meeting between the claimant, his colleagues and Mr. BD

on the 15th Jan. 2015, the claimant submitted a lengthy email setting out his grievances with

Mr. BD. The respondent set out the ensuing exchanges and correspondence between the

parties. The HR Manager set up an appointment with Medmark on the 28th April and the

advice was that the claimant was unfit for work in the short term but was expected to be

fit in 2-4 weeks with additional support and treatment. Counselling was recommended via

EAP. The doctor did conclude that the claimant was fit to engage with the respondent to

resolve work related issues.

The HR manager was appointed to investigate the claimant’s grievances and the

respondent detailed the process that was undertaken. The records of the meetings with

the claimant his line manager and witnesses were presented. The HR manager issued his

findings on the 17th June – the complaints of bullying behaviour were not upheld, the

cliamant’s downloading of software was to be referred to an IT manager for review and the

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claimant’s allegations by virtue of their personal nature were to be referred for review by

an appropriately appointed manager. The HR manager recommended mediation and the

claimant was advised of his right of appeal of the outcome of the investigation. It was

submitted that the claimant was unhappy with the outcome, did not believe the matter

was fully investigated and the claimant had contended that other witnesses should have

been interviewed. The respondent’s HR Manager responded to the claimant’s issues with

the investigation on the 26th.June 2015. The claimant was referred for a medical to the

company doctor on the 16th July and the claimant was deemed fit for work. As the

claimant’s GP was deeming the claimant unfit for work, a meeting was held with the

claimant on the 31st July and the claimant agreed to attend an independent doctor if

required. Arising from this assessment the claimant was deemed fit to resume work by an

Occupational Health Physician on the 20th August 2015. The doctor recommended that a

meeting take place with the claimant prior to his return to try and resolve outstanding

issues.

The meeting took place on the 24th Sept 2015 and it was submitted that the claimant was

given an opportunity to set out his issues with his line manager, the respondent pointed

out that the claimant had failed to appeal the outcome of the investigation, an offer of

mediation was made which was declined by the claimant and the claimant indicated his

wish to terminate his employment. It was submitted that the “Claimant’s resignation was

not an outcome it would want but would like an opportunity to address the claimant’s

issues with a view to reaching a suitable resolution”. It was submitted that the claimant

failed to offer any suitable alternative. It was submitted that it was made clear to the

claimant that the company were not asking the claimant to return to his work environment

in which he was uncomfortable. The claimant’s solicitor responded on the 9th Oct. 2015

asserting that the company response to the claimant’s grievances was to have him

medically assessed and threatened with disciplinary action and an external review into the

claimant’s grievances was sought. In response the claimant was offered an alternative role

retaining his existing conditions and reporting to a different manager. The ensuing

correspondence between the parties was outlined. The claimant’s solicitor declared the

offer of an alternative manager was unacceptable as the proposed manager was involved

as a witness in the investigation and had not supported the claimant’s version of events.

Ultimately, the claimant’s solicitor notified the respondent on the 27th April 2016, that the

claimant had no option but to resign.

It was submitted that a constructive dismissal complaint imposes a burden on the claimant

that the claimant was entitled to terminate the contract owing to a breach of contract or

to demonstrate that the respondent acted so unreasonably that the continuation of the

employment relationship was intolerable.

It was submitted that no contractual violation occurred. It was advanced that the claimant

did not exhaust procedures before resigning and consequently had acted unreasonably and

that the company had at all times acted fairly and sought to engage reasonably with the

claimant. The provisions of UD 855/2007 Conway V Ulster Bank were invoked in support

of the respondent’s submissions.

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The respondent’s representative indicated that the claimant’s line manager had left the

company and consequently would not be giving evidence and the line manager’s manager

was still employed by the respondent but was on annual leave.

In summing up the respondent’s representative argued that the company could not have

done much more; they had made every reasonable effort to facilitate the claimant,

mediation had been offered; an alternate role had been offered and the claimant had been

given a right of appeal that he did not exercise. No contractual provisions had been violated

and the respondent had acted reasonably.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the

complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that

Act.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation

to the complaint in accordance with the relevant redress provisions under that Act.

Complaint under the Organisation of Working Time Act 1997

Claim reference CA- 0000 7805 -00 1

I have reviewed the evidence presented at the hearing and considered the respondent’s

documentation on the matter. I am satisfied that the claimant has an entitlement to 1 public holiday

having regard to the provisions contained in Schedule 3 of the Act. I accept the respondent’s

contention that the claimant had no entitlement to annual leave for the period of February 2015 –

August 2015 – on the basis that the legislation providing for the accrual of annual leave only came into

effect in August 2015 and that prior to this leave accrued against time worked only. I accept the

claimant has an outstanding entitlement of 2 days annual leave to 10 Feb. 2015 and 15.75 days

accrued during absence from work from August 2015 – April 2016. Accordingly, I require the

respondent to pay the claimant a total of 18.75 days leave together with compensation of 1,000 euro

within 42 days of the date of this decision.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the

unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Complaint under the Unfair Dismissals Act 1977 - claim reference

CA-00007805-002

I have reviewed the evidence presented at the hearing and fully acknowledge the concern of the

claimant regarding the absence of witnesses for the respondent particularly in the context of the

number of postponements that had been sought and obtained by the respondent’s side.

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However, the law places a very high burden on the claimant in the context of a complaint of

constructive dismissal. While I acknowledge the claimant had lost confidence in the company’s

internal procedures, I find on the basis of the evidence presented that he should have exhausted the

internal appeal process before taking the ultimate step of terminating his own employment.

Additionally, I find that the claimant’s unwillingness to trial the arrangements offered of an alternative

reporting relationship was unreasonable. For the foregoing reasons, I am satisfied the claimant has

failed to discharge the burden required to validate a complaint of constructive dismissal and

accordingly, I do not uphold the complaint.

Dated: 27.11.18

Workplace Relations Commission Adjudication Officer: Emer O'Shea