ADJ-00012879

Complainant

Respondent

Anonymised Parties

Network engineer

Communications provider

Representatives

Self-represented

Respondent’s HR executives

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-00016771-001

09/01/2018

This is a complaint of constructive dismissal.

The complainant commenced employment with the respondent in 1998 as a network engineer.

The complainant requested that an external IT company assist him in recovering support documents on his laptop in March 2017. That company in doing so uncovered material which they submitted to the respondent. The respondent decided that the material found on the complainant’s laptop by the external IT company breached their communications policy and notified the complainant on the 6 June 2017 that he was to be investigated for a breach of their communications policy.

The complainant maintains that the investigative procedure was flawed, was leaning towards dismissal, his workload was excessive and that in the circumstances, the behaviour of the respondent coupled with health considerations, left him with no option but to resign. He resigned on the 2 January 2018.

He worked 37.5 hours a week for which he is paid €2088, gross, per fortnight.

He submitted his complaint to the WRC on 9/1/2017.

The complainant advises that he resigned his job of 20 years due to the behaviour of his employer.: He states that his position became untenable. He cites

unfair apportioning of roles and responsibilities;

failure to implement, in anything other than short lived ways, an obvious remedy- the Personal Management and Development System and specifically requested by him on more than one occasion;

unsatisfactory engagement by management with him when approached to remedy the situation;

that his position became untenable as the investigation established to examine a charge of breach of communications policy was characterised by inadequate opportunities to present his defence in full.

He also stated that the respondent reneged on previous, and recorded, agreements to allow him to bring to the table any expert opinion which he considered necessary to substantiate, in an impartial way, claims which he had made. The complainant had a transcript from an investigative meeting which took place on 15/6/17 in which the investigator had stated that” she would be happy to make contact and interview anybody either that I believe is necessary in terms of forming a whole picture or anybody that you might suggest. But again, I would be meeting with that individual separately from yourself, you know, rather than together with you.”.

The dismissal of his defence of charge of gross misconduct on grounds that his arguments were not pertinent and put to him at the first investigative meeting of the 9th June 2017 added to his belief that he had no choice but to resign. At that meeting he was encouraged to process these issues concerning workload, failure to respond to his concerns re same and resultant health issues through the Grievance Procedure.

The complainant contends that there were deficits in the investigation of the alleged breach of the communications policy in many respects, including inadequate attention to the keeping of interview records, inadequate care taken in the version of his principle defence document as it formed part of the report presented to senior management, inadequate care taken in making parts of that document even visible to the reader.

Given that he was not allowed import medical and artistic opinion into the investigative or disciplinary procedure, he did not believe the respondent’s director, with whom the decision to dismiss an employee rests, would be sufficiently briefed to make a fair decision because the additional dialogue which he requested to complete his defence had been denied to him.

The respondent’s HR manager advised him that the investigation into the breach of the communications policy and any grievance procedures which he had initiated, were separate , discrete matters. The complainant believed that the outcome of the grievance procedure would perhaps uphold the validity of his claim of mitigating circumstances, these being workload and health problems and this had a tremendous bearing on the case and was pivotal to his defence.

An appeal against the recommendation of the assistant director to dismiss would consist of a full hearing by the Chief Executive before a decision is taken and that "The Chief Executive will arrange that a full investigation will be carried out within 4 weeks, which may include a meeting with the employee..."(Respondent’s Disciplinary Procedure) The complainant had little confidence in the outcome of his appeal if the outcome of his grievance procedure was not factored into the appeals deliberations.

The respondent disputes that a dismissal occurred. The respondent resigned on 2 January 2018 while still in the midst of a grievance procedure process and with the option of an appeal outstanding against the recommendation for dismissal. It was a recommendation only at the point of his resignation.

The 1977 Act, describing constructive dismissal, provides for situations where “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…”.

The respondent points to the distinction between the two limbs of section 1 (b) of the 1977 Act cited above. These provisions were addressed by the Labour Court in Paris Bakery& Pastry Ltd v Mrzljak DWT 1468/2014. The first limb applies where “an employer behaves ina way that amounts to a repudiation of the contract of employment. However, not every breach contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract.” The respondent does not accept that there is any evidence to support such a proposition

The second limb, contained in section 1(b) above and characterised in the Paris Bakery& Pastry Ltd v Mrzljak DWT 1468/2014 case   and in other authorities was held to apply where “the employer conducts his or her affairs, in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer”. The respondent does not accept that there is any evidence to support this contention.

The grounds advanced to support the complainant’s position that the conduct of the employer was so unreasonable as to leave him with no option but to resign were addressed by the respondent.

The excessive workload.

This was advanced at the first investigative meeting held on the 9 June. The respondent advised that the complainant had never processed these concerns through the grievance procedure which was the agreed mechanism until after the charge of a breach of their communications policy was put to him. He resigned before the grievance procedure had the opportunity to draw conclusions on the validity of his complaint and its relevance to his downloading pornographic images. The respondent also asked how he had the time to visit these sites during working time if he was overburdened with work.

Health issues.

The complainant cited insomnia because of the stress associated with his excessive workload.   No medical evidence was supplied to support this argument. A letter from his GP in September 2017 states that his insomnia is much improved and that his problem is noise intolerance. The complainant did not want the respondent to contact his GP. He was offered the services of a counsellor / EAP service but declined same. The respondent did try and accommodate him in relation to noise reduction in response to a request from his GP dated in a letter.

Failure to take account of his defence/ mitigating circumstances as to why he accessed this material.

The respondent did consider the mitigating circumstances advanced by the complainant. Specifically, they looked at his contention that he accessed these sites as an anti-dote to his tendency to fall asleep at his desk during daytime working hours as a result of fatigue due to insomnia- a condition he attributes to stress caused by an excessive workload. They did not accept this as a valid explanation as to why an employee would deal with the effects of insomnia and resultant day-time sleeping on the job via pornography.

Refusal to allow him to import specific expertise.

The respondent declined the complainant’s request to import into the investigation procedure a person who would comment on the complainant’s sketches and the contribution of the images accessed on the website to his development as an artist specialising in the female form. The respondent submitted a document outlining the titles of the sites and images visited and considered them without a doubt to be pornographic so whatever artistic merit might exist in these images was irrelevant. His request for a medical opinion which could attribute his insomnia to workplace stress and link these two matters to his accessing prohibited material during working hours was likewise deemed not relevant. He had been advised of the availability of the EAP

Insufficient time to advance his case.

The investigation took place over 3 meetings. Ample time was provided to the complainant and his representative to address the charges put to him. The request for external expertise – artistic and of an IT nature were not deemed relevant to the requirement to fully consider the complainant’s accessing of material which was expressly prohibited in the respondent’s communication policy. This refers to the decision to disallow an artist to give his/her views on artistic merit on the material accessed.

The process used by the employer to investigate the charge of accessing pornographic material on the respondent’s laptop during working hours

The respondent submitted a document demonstrating 1392 pornographic images intentionally downloaded and visited between 2015 and 2017. While they were not illegal they were seen as offensive to other employees

On 9 June the respondent initiated an investigation into a breach of section 3 its Communications Policy which states, inter alia,

“…e. Employees are prohibited from accessing, downloading, saving,

circulating or transmitting any racist, defamatory or other inappropriate materials or

materials that may discriminate on the grounds of gender, marital status, family status,

age, race, religion, sexual orientation, disability or membership of the Traveller

community. To do so will be regarded as a disciplinary matter.

f. Employees prohibited from accessing, downloading, saving, circulating

or transmitting any indecent, obscene, child pornographic or adult pornographic material.

This is regarded as gross misconduct under the Disciplinary Procedure….”

The complainant had the charges put to him in accordance with the agreed disciplinary policy. Each stage of the investigative and disciplinary procedure was scrupulously followed. The complainant did not deny that he had visited these sites. The respondent did not accept his defence that looking at these images arose because of the chain of events cited by the complainant. These chains of events already addressed, were as follows:

The complainant was overworked. He suffered from insomnia. The complainant often fell asleep at his desk during working hours and he reported that an effective way of waking himself up was to look at the sites generating these images. Sometimes the images came via URLs.

The complainant had an intolerance of noise.

A recommendation for dismissal was made on 11 December to the Chief Executive Officer. The complainant was notified of the right to appeal the recommendation to dismiss. The complainant did not exercise the appeal option and resigned on 2 January.

The respondent did not accept that his behaviour was so intolerable as to compel the complainant to resign.

In the event that the respondent is found to have dismissed the complainant, the respondent refers to the EAT decision Noritake Ireland ltd v Kenna (UD88/1983) referred to the three elements which must be considered to determine if the sanction of dismissal is reasonable:

Did the company believe that the employee misconducted himself as alleged?

If so, did the company have reasonable grounds to sustain that belief?

If so, was the penalty of dismissal proportionate to the alleged misconduct?

The respondent asserts that the answer to the three questions in the instant case is yes.

The complaint should be rejected.

The 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 advanced a number of reasons to substantiate his complaint of constructive dismissal..

Excessive workload and how tasks and responsibilities were assigned.

This is a legitimate concern for any employee. However, it is reasonable to expect the employee to give the respondent an opportunity to rectify matters via the use of the grievance procedure. It is noted that he mentioned his work load to his line manager. There is an incongruity between the complaint of an excessive workload and at the same time having time to access the prohibited material. The complainant did submit these complaints after the investigation into his breach of the communications policy commenced but he resigned before the grievance procedure could reach its conclusions on the validity or otherwise of his complaints.

I do not find this to be evidence demonstrating that the respondent’s behaviour was so unreasonable as to merit resignation.

The failure of the respondent to comprehend that the complainant’s exhaustion and insomnia was due to his excessive workload and how this combination contributed to him accessing the prohibited material.

The complainant did not submit any medical documentation to support his claims that the workload contributed to exhaustion and insomnia. He did submit a letter from his GP dated September 2017 advising that he was extremely sensitive to noise and that accommodation in a noiseless space would benefit him. This was offered to him but his own evidence is that this did not assist him. He was offered the services of the EAP, but declined to avail of this service. I do not find that the complainant took the necessary steps to enable the respondent to deal with this matter.

I do not find that this met the test of intolerable behaviour by the respondent.

Fairness of the investigative and disciplinary process. Failing to take account of his defence/ mitigating circumstances as to why he accessed this material.;

The complainant did not dispute that the procedure had been carried out according to its terms. What he states compelled him to resign was that the respondent did not afford him enough time to make his defence and compromised his defence by disallowing expert opinion which might put a different construction on his behaviour.

There were 3 investigative meetings.

Expert medical opinion. The complainant did not suggest a particular expert but pushed for a medical expert to be permitted to link the excessive workload to the insomnia and how     these two conditions culminated in him accessing the prohibited material.

Expert artistic opinion. Again, no specific person was specified but he wanted the respondent to commit to consider the opinions of an artist who would address the intrinsic artistic merit of these images and their educational benefit to him as a developing artist interested in the female form.

The 1392 images accessed by the complainant on the respondent’s laptop during working hours and submitted to the hearing are unlikely to escape the classification of pornographic and to reach the heights of artistic value even if a professional artist’s eye were to be engaged. The respondent’s classification of the material was not unreasonable.

The respondent’s failure to accept what he describes as his” coping mechanism” for dealing with falling asleep at his desk led to the classification of his behaviour as gross misconduct, a classification which led to the recommendation of dismissal. The absence of medical and artistic opinion and the absence of the outcome of the grievance procedure persuaded him to believe that the CEO would therefore not be fully briefed and would uphold the dismissal from which he believed there was no way back. But he did not appeal the recommendation.

The complainant’s explanation of his coping mechanism for dealing with falling asleep at his desk where he states that short bursts of internet material spurred him into wakefulness is in the realms of the fantastical.

He accepted at the hearing on 5/18 that the sites were inappropriate. He did not apologise to the respondent at any stage prior to the hearing.

Based on the written and oral evidence and for the reasons cited above, I do not find that the complaint has demonstrated that the respondent’s behaviour was so intolerable as to leave him with no other choice but to resign.

I do not find that this complaint is well- founded

I do not uphold this complaint that the complainant was constructively dismissed. Failure to use appeals process.

Constructive dismissal. Failure to use appeals process.