ADJ-00013381

Complainant

Respondent

Anonymised Parties

A Service Engineer

An Architectural Company

Representatives

Stephen McCarthy , Representative.

Simon Kelly , Solicitor.

Act

Complaint Reference No.

Date of Receipt

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

CA-00017639-001

24/02/2018

This is a complaint of constructive dismissal contested by the Respondent. the Complainant was Represented by Stephen Mc Carthy, and the Respondent was represented by their Solicitor, Simon Kelly. Both parties made helpful written and oral submissions in the case. Both parties submitted the requested supplementary documents post hearing. A Table of actual and prospective loss was submitted by the Complainant during the first week of October 2018.

The Complainant worked as a Service Engineer for the Respondent company from 22 February 2016 until he had to resign his position from a job he really enjoyed on 23 February 2018. He worked a 40-hour week and his nett pay was €2500.27 per month. The Complainants Representative outlined that he sought the remedy of compensation if successful in the case and found new work one day after his dismissal which was prefaced by a three-week period of illness.

In advance of the hearing, the complainant submitted a written statement which I have summarised as.

On January 24, 2018, the Complainant receive an email of invitation to attend a meeting with his service manager, Mr B, and a visiting Dublin based Manager the following day at 11 am. The purpose of the meeting was described as “to discuss some issues relating to your role in the company.”

The Complainant agreed to attend and sought clarification without success.

On the following day, whilst involved in a work errand, the complainant spotted three of the Managers cars parked adjacent to each other by a coffee shop for an extended period, after which they returned to the company base simultaneously shortly before the commencement of the meeting. He heard the local Service Manager whistle a tune from the film “Rocky “which he found intimidating and this caused him a certain apprehension.

The Complainant proceeded to attend the meeting only to discover that it was constructed as a Disciplinary Meeting where his work performance was affirmed but his conduct and attitude towards his line Manager, Ms C was identified as a “major problem, which had to stop”.

Mr A, the local Service Manager referred to a “lock incident” in a certain Hotel in Limerick where he had been asked to address an issue of concern. As he had not been involved in the installation, the complainant deferred to a colleague initially then handled the issue only to find that the service required was “call out”. His information was that the lock had been incorrectly fitted by a colleague and he took issue when his Line Manager chastised him for his handling of the issue.

Other issues were raised regarding apparent deviations from work schedules agreed between the complainant’s immediate boss, Ms A and the complainant. The Complainant raised his issues of concern, where he submitted that Ms A had insufficient experience and did not understand his points of concern. He had been overburdened by emails and excessively monitored in his work by Ms A.

The Complainant understood that he was to receive a final written warning. He submitted that he was denied an appeal of this sanction on February 1, 2018.

The next day, the complainant submitted that he was sent to work at a Student Village and there was further controversy about a lack of clarification in the detail of the work he was to complete. He was unable to obtain this clarification from his immediate line manager. He then sought Medical advice and he was signed off sick for at least 2 weeks.

On February 1, 2018 he gave his work lap top to a Company employee at 15.35 hrs as requested. The Complainant then sought to arrange collection of his work van but there was no reply. He was engaged in supporting his wife at a hospital appointment when a further request to pick up the van followed.

The Complainant decided to remove himself from the toxic environment of work on Health and Safety grounds. He handed in his notice but was faced with inordinate delays before he received his P45. He contended that he had been harassed and excluded from the company.

Evidence of the Complainant:

The Complainant enjoyed his work but stated that his job changed in January 2018 and he had sought to engage with the Respondent without success. He had developed a growing unease around the rosters he received and the inconsistency in the modifications required to the jobs therein. He had a defined difficulty with Ms A his line Manager.

He received a request to attend a meeting with his Managers which was to take place on January 25. He sought clarification at 17.50 hrs on 24 January.

“Thanks for getting back to me, I am happy to meet you and Mr X at 11 am. can I ask what are these issues regarding my role within the company are?”

The Complainant described participating in a one-sided meeting of 1.5 hours duration where he was berated and where he felt he had no choice but to “sit there and take it “. Some situational issues were discussed on the need to synchronise the Tablet with his work schedule and there were a couple of instances where it wasn’t possible to get his work sheet signed.

The Meeting centred on the difficulties that Ms A had reported involving the complainants attitude towards her. The Complainant had issues with Ms A also and he was prevailed on to improve on this interaction. He believed that the language used by the Managers was profane and over the top.

He was informed that he was to receive a written warning of 6 months duration followed by close monitoring. He was very shocked and likened the effect of the meeting to “being stabbed”.

The Complainant confirmed that he had taped the meeting.

He believed that he was set up to fail after that as he was involved in a controversy surrounding a job on the Student campus and was chastised on having to update his tablet.

The Complainant submitted that he made an appointment with his Doctor as he had trouble sleeping. He was placed on two weeks sick leave and prescribed sleeping tablets. Three days later, he received a copy of the warning:

…. It was pointed out to you that your attitude and conduct, towards your line manager is unacceptable to this company. This was evidenced by the nature and language of various emails and verbal communication between you and (her) over the past number of months.

Please take this as an official warning and be advised that you are to be placed on six months’ probation from today ……….

The Complainant confirmed that operational difficulties had surrounded his working relationship with Ms A. He experienced a lot of reactionary calls from her and he did not have confidence in her operational knowledge.

The complainant contended that he had not been heard and wanted to appeal. He forwarded his appeal at 11.44 hrs on Monday, January 29 ,2018.

“I take on board that Ms A and myself need to get along however, I do not accept the written warning you have decided to hand down to me and this is notice that I would like to appeal your decision “

On Thursday February 1, 2018, the Complainant submitted that he was denied an appeal and asked to surrender his tools and van during his sick leave. He believed he was being bullied and experienced great anxiety at the company’s fervour to retrieve the tools and van. He was approached by a work colleague on company passwords while he was on work related stress.

He resigned his position as he believed that he had no choice given what he had experienced from the Respondent. He gave evidence that he had commenced work within a 4 week period of the resignation .

During cross examination, the complainant confirmed that he was one of two Engineers involved in “call out” who reported to Ms A. He confirmed that he had requested input from the Dublin side of the business on a trouble shooting basis and added that the Dublin Office ran much better.

The Complainant confirmed that he was under pressure from Ms A to synchronise his work with the Tablet instructions with certain instructions for work validation. He had different ideas on this validation. He confirmed that he was conscientious and good at his job. He recounts how he and Ms A analysed the input required on a certain service and deferred to another operator. He confirmed that he sometimes had cause to schedule in jobs himself

The Complainant confirmed that he believed that the January 25 meeting was going to lead to a promotion for him. He decided to tape the meeting. He had not been informed that he could bring a representative.

In response to the Respondents representative direct question that the company had merely sought an improvement from him, he indicated that “that wasn’t going to happen”

He confirmed that he was aggrieved at the allocation of over time to one of the operators.

The Complainant confirmed that he had not raised a grievance but had wanted to appeal the Disciplinary sanction. He had pre- booked a Medical appointment on the Monday January 29 th as he wasn’t feeling right. He confirmed that he was unable to return to work and secured a 6-day week job nearer his home which paid €450 nett per week.

The Complainant described that the working relationship with Ms A was bearable during the first 6 to 8 months of his employment. He was aware of Grievance and Disciplinary procedures as he signed these on starting employment.

He confirmed that he “smelled danger “around the January 25 meeting and its aftermath and he identified hi stepping point in considering his decision to terminate his employment as the January 25 meeting.

IN closing for the complainant, the Representative sought the remedy of compensation for actual and prospective loss of earnings which stood at €18,216.

He outlined that the complainant had faced duress during his work when he was asked to down tools every hour to go outside to pick up a signal on his phone.

He contended that the complainant should be permitted to go back into the workforce exonerated by his actions, based on the lack of natural justice afforded to him by the Respondent. He argued that his experience there represented a most disturbing abdication from all accepted industrial relations norms and best practice.

The Complainant was denied the fundamental protection of fair procedures and natural justice when

1 The Company ignored the complainants direct evidence and relied on here say from Ms A

2 The Company failed to provide any specific allegations or provide any written statements against him.

3 The Complainant was not advised of the seriousness of the situation and that he would receive a pre-determined final written warning.

4 The Complainant was not allowed to defend himself and he was not permitted to cross examine witness statements.

5 The Complainants request for clarification on the January 25 meeting was ignored thus preventing the complainant from seeking representation.

The Complainant had tried to circumvent the difficulties by seeking a resolution from the Dublin office. He had sought to resolve the difficulties on a 1:1 basis with Mr B.

The Complainant received 14 messages and many calls regarding the retrieval of work equipment while on work related stress. Five weeks later, he was approached for his password and access codes which proved that the immediate request for retrieval was not justified.

The respondent opened by outlining that the Complainant was well regarded for the quality of his work, yet a procedural issue had arisen between the link up of work allocation by Ms A and the complainant’s interpretation of same.

This prompted a meeting between the parties on January 25, 2018, which the complainant had taped and which subsequently had got out of hand. The Respondent placed the Complainant on probation as a result.

The Respondent contended that the termination of employment was a completely disproportionate response by the complainant to these events.

Evidence of Mr B, Service Manager.

Mr B outlined the background to the invitation extended to the complainant to attend a meeting on January 24, 2018. A Dublin based Manager was expected at the company base.

Mr B was aware of friction between Ms A and the complainant. Ms A had escalated the matter to a grievance in that every corner she turned there were emails submitted by the complainant. In turn her responses were terse but the complainant had the “bigger issue “.

The Respondent decided that the way forward should be around a Disciplinary Meeting. He, himself did not have an issue with the complainant and they got on well as he was a very good Engineer. Mr B believed that the problem was capable of remedy. he confirmed that he had met with Ms A in advance of the meeting.

The meeting progressed and he found that the complainant tended to focus on other people’s shortcomings. He was nervous and more communicative towards the end. He explained that the complainant was to be placed on probation as he didn’t want to lose him as he would be costly to replace. Mr B expressed some regret around the meeting and agreed that in hindsight he would have approached it differently. He confirmed that an extensive conversation ensued around operational challenges and the complainant sought his own schedule.

Mr B understood that the complainant had a closed attitude to the flexibilities and improvements sought by the company. There were, he believed very serious differences between them.

He understood that the complainant had applied to appeal the Disciplinary sanction and this was to be handled by the CEO.

Whilst the complainant was on sick leave, the company had outstanding work requirements and an earnest and sensitive attempt was made to redeem the van and tools for that purpose. he understood that the complainant was struck by his being allowed to retain the van during his honey moon period, but this was pre- planned leave, covered from Dublin.

Mr B confirmed that he was genuinely disappointed by the complainant’s decision to resign and denied that he had masterminded his termination of employment.

During cross examination, Mr B reaffirmed that the complainant’s emails to his Manger were aggressive and were written in Capital letters.

Mr B confirmed that the Grievance and Disciplinary Policies had been the subject of retraining and available in a workplace folder.

When questioned by the Complainants Representative on why Ms A kept updating on the Tablet alone, Mr B responded by saying that all service Engineers use Tablets as an operational tool.

When requested why the Complainant had not been forewarned of Disciplinary Hearing which caused him to believe that he had been” bushwhacked”, Mr B responded by saying he wasn’t looking forward to it. He had not chosen to exclude him from his work schedule.

Mr B confirmed that the Company did not utilise the services of a Personnel Manager. He confirmed that the complainant had resigned during his sick leave and he was sorry to see him go.

In concluding for the Respondent, the Representative submitted that the complainant had not satisfied the burden of proof necessary to prove a constructive dismissal. The Respondent acted reasonably and the Complainants actions were unreasonable and precipitous as he did not utilise the Grievance procedure outlined in the staff handbook. In addition, the complainant had not demonstrated loss and mitigation.

I have carefully considered the oral and written submissions of both parties. I have also considered the evidence of both witnesses. I wish to acknowledge the efforts of the parties to seek a resolution in the case on the day of hearing , albeit unsuccessfully.

The Complainant has claimed that his resignation on 23 February 2018 was an involuntary action caused by his experiences at work. He has claimed that he was constructively dismissed.

There is a very high burden of proof placed on the complainant in such cases and I have approached the case in that vein. I must examine the behaviour of both the employer and the employee in this case to seek to establish if the burden of proof has been reached in the case. Section 1 of the Unfair Dismissals Act refers .

From the outset, the Complainant struck me as having entrepreneurial traits in his approach to work. Where he was met with linear requests and information on operational matters, he sought to address these through creativity and therein seemed to lie the clash with his Line Manager, who did not attend the hearing. It was clear that he enjoyed his job and his performance was not an issue.

The facts of this case centred largely on the events of January 24-29, 2018. I accept that the complainant carried an unease surrounding his work for a considerable period but this had not been formalised

I was struck by the complainant’s perception that he may be going to meet with his Senior Managers to explore the possibility of promotion on January 25th. I found this very unusual and didn’t fit against the complainant’s ultimate decision to tape the meeting. The Complainants Representative sought to place this taping into evidence, I refused as the taping had been executed surreptitiously and was inadmissible.

I accept that the Complainant was caught completely off guard at the January 25 Meeting. I appreciate that he was uneasy following his observation of the three managers congregated off site. By his own admission, Mr B submitted that in hindsight he would have conducted the meeting differently. The Respondent confirmed that the Complainants Line Manager had raised a complaint against him and they felt obliged to deal with it.

I appreciate that it can be difficult to juggle the rights of both employees in the case of a complaint However, the Respondent was responsible for overseeing fair procedures and ought to have furnished the complainant with the complaint and afforded sufficient time and representation before he was required to respond.

I found plenty scope in the company procedures to address the inter- personal conflict between the complainant and his line manager through an informal arena and am disappointed that this was not attempted.

There was no need to jump whole sale into an unannounced Disciplinary forum. This was a precipitous and unjust action by the Respondent. The reference to an imposition of a written warning and ongoing probation was unduly harsh and worthy of appeal.

I accept that the Complainant was subject to extremely forthright, vulgar and abusive language during a lengthy meeting. Given his proven track record in focussed solutions, it would have been reasonable for him to withdraw from such an unexpected tirade. However, he told the hearing that he stayed there for 1.5 hrs while he taped the interactions. I found that this was an ill-judged decision and one which did nothing to assist a resolution in the case.

I asked the Respondent to provide the company procedures after the hearing. I did this firstly to satisfy myself of the overarching procedures to be relied on by the parties. The Complainant submitted that he was aware of the procedures but the company did not produce a signed copy of his acceptance as the contract merely stated “Staff handbook, if issued “. I afforded the Complainants Representative time to comment on the procedures but I did not receive any commentary outside a statement of loss on the conclusion of employment.

I appreciate that the complainant was traumatised by the January 25 meeting and he struggled on his return to his schedule which he attributed to his line Managers omissions. He told me during the hearing that he knew there was no point of continuing his employment on the Monday, January 29.

He submitted his sick certificate on that day and submitted his appeal of what he considered to be a final written warning. Yet the notification of Disciplinary sanction does not appear to have been received until two days later. I note that this was an undated letter.

I have paid attention to the events which followed the January 25 meeting. The Complainant confirmed that he took advice on his situation and submitted his notice of resignation on Friday, February 9, 2018 citing

1 He understood that he was prevented from appealing the “written warning “

2 He had been pressurised to return the Van, which he attributed to his Line Manager, Ms A.

3. He believed that he was being bullied and harassed in the last weeks and months

4 He submitted another sick note up until February 26, 2018 and confirmed his decision to terminate his employment.

I have no desire to minimise the complainants experience at the company on January 25. However, while I have already commented on the ill-advised taping, he was obliged to at least act on his concerns before termination of employment.

There were sufficient procedures such as the Grievance procedure /mediation open to him with the benefit of representation to seek to make up for lost ground. I found that the Respondent was somewhat reluctantly prepared to process the complainants appeal. I accepted the divergent reported practice surrounding retrieval of the Van during the second week of the complainant’s sick leave. This was unplanned leave whereas the Honeymoon leave was planned and a different arrangement followed.

I can also appreciate that the complainant may not have had the resolve while on work related stress to address this. I note that the Company had not placed any pressure on him to return to work and the resignation was accepted 14 mins post submission.

I cannot agree that the Complainant was denied an appeal of his perceived “final written warning “. There was provision for an appeal in the staff handbook and this should have been tested prior to departure.

In an EAT case from 2014: Patricia Barry Relph V HSE UD 980/2014, the complainant outlined a period of intense exclusion at work and claimed Constructive Dismissal. In disagreeing, the EAT decided that:

The claimant never elected between a grievance or a dignity at work procedure. She wanted management to simply back her up. Having carefully considered the evidence adduced by both parties, the Tribunal finds that the claimant did not give her employer an opportunity to deal with her complaints. The Tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she had failed to exhaust any of the several avenues open to her.

I found many overlaps in the instant case. The Complainant submitted details of his payslip in his new job as his having worked 19 insurable weeks to the week of 29 June. This placed his start date there at the point in or around his date of termination of employment. The Complainant confirmed that he spent three weeks on illness benefit before he found another job.

While I can appreciate that the complainant was terribly upset prior to his resignation and this lingered into the post termination phase populated by Administrative delays , I found that his withdrawal from the workplace through illness removed the impetus for resolution in the case. I do not blame the complainant for choosing a place of safety for him in sick leave, however, I must examine what measures, if any the complainant took to resolve his difficulties and I have drawn a blank in that regard.

This was the story of an interpersonal conflict, brewing for some time which was not managed through the company’s own excellent procedures by either party in the case. This was then interrupted by a Disciplinary sanction wrongly applied but not afforded time to appeal and nullify by the complainant.

I have considered the behaviour of both parties in the case and while, I found considerable wrong on both sides in the procedural shortcomings in the case, I must conclude that the complainant simply did not do enough to address his workplace issues prior to tendering his resignation from sick leave followed by his securing virtual continuous employment. I am mindful that he had the benefit of representation at this juncture in the case.

On that basis, I must find that while the Complainant experienced a very difficult work environment in the last week of January 2018, I found that he has not satisfied the burden of proof to justify his resignation being of an involuntary nature. From his evidence, the complainant was planning new work while on sick leave from the Respondent and he had clearly severed his connections there from February 9, 2018 without exhausting the tools for resolution of his issues.

I am not satisfied by the defined variance from best practice on behalf of the Respondent, either.

However, the Complainant has not satisfied   the test set out in Section 1 of the Unfair Dismissals Act 1977 on Constructive Dismissal.

I find the claim to be not well founded.

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.

I have found that the Complainant has not satisfied the test in establishing a Constructive Dismissal.

Claim for Constructive Dismissal