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-00018809-001

30/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018809-002

30/04/2018

The complainant filed his complaints on 30 April 2018. On 14 August 2018, the Director General delegated them to me for hearing and decision. I heard the matter on 25 September 2018, and gave the complainant’s representative until 8 October 2018 to make provide additional written observations on the respondent’s submission. The complainant did not do so.

CA-00018809-001, Unfair Dismissals Act: The complainant’s case can be summarised as follows: The complainant states that he made a protected disclosure regarding some seriously out-of-date foodstuffs to the respondent’s management. The complainant states that the respondent did not treat his disclosure with the necessary confidentiality, which resulted not only in a confrontation between the complainant and a colleague who was responsible for the foodstuffs in question, but also to the complainant being asked, when he interviewed for a position at another supermarket of the same franchise, about his protected disclosure.

As a result of the confrontation with his colleague, the complainant was suspended with pay, while the respondent investigated the matter. It is the complainant’s position that the original confrontation ensued because the colleague was irate about his protected disclosure. It would have been her responsibility to monitor and remove the spoiled foods.

During the investigation and the disciplinary hearing with followed, the complainant was represented by his trade union official. The result of these processes was that the complainant was sanctioned with a written warning, to be retained on his file for a year. The complainant availed of his right to an appeal, but the sanction was upheld on appeal.

From August 2017, when he appealed his sanction, until his resignation from the respondent’s employment on 1 February 2018, the complainant was out on certified sick leave.   As he explained in his oral evidence, the whole sequence of events as summarised above had caused him significant stress. He disputed that his relationship with his colleague was abusive in any way, and that he had repeatedly assisted her with minor car repairs at no cost to her. (The complainant originally trained as a motor mechanic.) However, the complainant confirmed in his own words that the relevant confrontation between them had been “a blazing row”. The complainant stated that he resigned because he had lost trust in the respondent, and felt that he was not receiving any help to re-integrate into the workplace. The complainant maintains that this amounts to a constructive unfair dismissal within the meaning of S. 1(c) of the Unfair Dismissals Acts. It is his contention that none of the above would have happened if the respondent’s management had treated his protected disclosure with the necessary confidentiality.

CA-00018809-002, Organisation of Working Time Act: It is the complainant’s position that since his period of annual leave fell into a period in which he was suspended with pay pending the outcome of the investigation into the incident described above, and during which he would have needed to be available to the investigation, the annual leave should have been cancelled and that he should have been paid for these two weeks when he left the respondent’s employment, pursuant to the provisions of S. 23 of the Organisation of Working Time Act, 1997.

CA-00018809-001, Unfair Dismissals Act: The respondent disputes that the complainant’s resignation amounts to a constructive unfair dismissal within the meaning of the Acts.   It disputes that the respondent’s management did not treat the complainant’s disclosure with sufficient confidentiality, or that it was a matter of “general conversation” in the workplace. It describes the confrontation between the complainant and his colleague, and which also involved other members of staff, as “heated”, and says that the incident was investigated when the complainant’s colleague raised a grievance about it.   It disputes that the investigation and subsequent disciplining of the complainant had anything to do with his protected disclosure and says that the complainant brought this up during the investigation of the grievance.  The complainant subsequently made a separate complaint on his protected disclosure (ADJ-00011905) to the Workplace Relations Commission on 11 December 2017.

As regards the complainant’s suspension, the respondent states that the reason for this step was to prevent a repetition of the conduct complained of, and it notes that it regarded the complainant’s behaviour as “quite serious”.   Once the investigation was concluded, the complainant was invited back to work, but he never returned.

The respondent disputes that it ever leaked the complainant’s disclosures within the franchise. It also points out that the complainant never used its grievance procedure to get the respondent to address his own grievances.

CA-00018809-002, Organisation of Working Time Act: In respect of this point, the respondent states that the complainant had previously booked annual leave for two weeks from 26 June and that neither did he make enquiries with the respondent as to whether he had to hold himself available for the investigation, nor was he actually required to do so.     The respondent therefore rejects the contention that it had an obligation to pay the complainant for untaken annual leave, pursuant to the provisions of S. 23 of the Organisation of Working Time Act, 1997.

CA-00018809-001, Unfair Dismissals Act: The first issue to be determined is whether the complainant’s actions in regard to the foodstuffs is actually a protected disclosure.

In her decision in ADJ-00011905, the Adjudication Officer found no penalisation under the Consumer Protection Act 2007 because the complainant had not made his complaint in writing to the Consumer Protection Agency, now the Competition and Consumer Protection Commission. In respect of the complainant’s second complaint in that case, alleging penalisation under the Safety, Health and Welfare at Work Act 2005, the Adjudication Officer found that the complainant was a sufficiently competent employee to have ascertained the use-by date of one of the foodstuffs himself, and notes that nobody but the complainant saw the second foodstuff.   She therefore found against the complainant in both complaints, and found that he was not penalised for his action under either statute.

Given that the Protected Disclosures Act 2014 only requires a reasonable belief, as per Section 5(2) of the Act, that relevant wrongdoing has occurred which might, inter alia, endanger the health and well-being of individuals, as set out in Section 5(3)(d), I am prepared to accept that the complainant bringing the foodstuffs to the attention of management constitutes a protected disclosure, even if he turned out to be mistaken, and although his actions do not satisfy the stricter probative hurdles for claims of penalisation set out under the statutes engaged in ADJ-00011905.

However, the complainant did not adduce any evidence which supported his contention that the respondent deliberately breached confidentiality on this matter.   The foodstuffs which the complainant alleged were badly spoiled were the responsibility of his colleague, the same with whom the “blazing row” ensued.   The complainant said so in his own evidence. It would therefore not have been unreasonable for the respondent to question this staff member about the matter. The complainant adduced no evidence whatsoever that the respondent’s management leaked information about his protected disclosure within the franchise.

It is the complainant’s contention that his colleague confronted him because she “wanted to get back at me”.   That might well be the case, given that if true, the complainant’s disclosures would have pointed to a major oversight in her area of responsibility. However, the entire investigation into the incident was opened in evidence, and it is clear that the complainant was ultimately disciplined with a written warning because he lost his composure in response to being confronted by his colleague.   As noted above, the complainant, when speaking of a “blazing row”, at least partly accepts this himself.   The complainant should arguably have expected some degree of interpersonal difficulty arising from his disclosure and have been prepared to handle such a matter in a professional manner. I cannot accept that the complainant’s behaviour in the confrontation with his colleague is in any way the respondent’s fault.   The linkages which the complainant seeks to argue here simply do not hold up.

The relevant legal test on constructive unfair dismissal is that either an employer breaches the contract of employment, or that it conducts itself so unreasonably that the employee has no option but to resign from his employment.   The complainant argues the second scenario. For a constructive unfair dismissal complaint to succeed under those circumstances, the responding employer must be on notice of the alleged unreasonable behaviour, so that it has an opportunity to address it. In this context it is important to note that the complainant did not utilise the respondent’s grievance procedure to address his own complaints. The complainant argues that he should have been given assistance to re-integrate into the respondent workplace once his suspension was lifted, but he adduced no evidence, and cited no caselaw, to show that this is actually an entitlement of employees who have experienced a period of suspension.

The complainant did not cite any particular defect in terms of the investigation or disciplinary procedure, nor was I able to identify such from the evidence opened to me.   The complainant was represented, had the right to an appeal, and the respondent appointed an outside investigator, who proceeded carefully and professionally.   I am satisfied that the respondent conducted itself reasonably in all these processes, and that the complainant’s resignation from the respondent’s employment therefore cannot be considered as a constructive unfair dismissal.

CA-00018809-002, Organisation of Working Time Act: It is common case that the complainant’s annual leave period fell into a period during which he was suspended from work with pay pending an investigation. I appreciate that this probably made the complainant’s holiday more stressful than taking a holiday in the normal course of an employment relationship. However, there is no evidence that the complainant was asked to be available to the investigation in that period.   Accordingly, I am satisfied that the complainant was granted his annual leave in an appropriate fashion and that the within complaint is not well founded.

For the reasons set out in detail above, neither complaint can succeed and I find against the complainant on both of them.

Organisation of Working Time Act, 1997 – Unfair Dismissal Act, 1977 – protected disclosure – ADJ-00011905 – constructive unfair dismissal – reasonableness test – holiday pay.