Complainant

Respondent

Anonymised Parties

Vehicle inspector

Vehicle testing service

Representatives

Laurie Burke L BURKE & CO

Kate McMahon & Associates. Mr Paul Twomey, B.L.

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-00028699-001

28/05/2019

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

CA-00028728-001

29/05/2019

The complainant has submitted a complaint of constructive dismissal under the Unfair Dismissals Act 1977-2015, plus a complaint under the Organisation of Working Time Act, 1997.

The complainant commenced work as a vehicle inspector with the respondent on 28 September 2009 and remained with the respondent until his resignation on 31/12/2018.

He worked 34 hours a week. His gross pay is €1647 per fortnight.

He submitted his complaints to the WRC on 29 May 2019.

CA-00028699-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The complainant states he was left with no option other than to resign on 31 December 2018 owing to the conduct of the employer to whom he submitted his concerns. The respondent failed to deal with his concerns.

Factors which led to his decision to resign.

He was micromanaged and bullied by his line manager. This had a detrimental effect on his health.

The complainant made a complaint in early 2016 to his Regional Manager, concerning his line manager, making adjustments in the car engines to produce a reading which had emissions within the normal range. The complainant believed that the line manager ‘doctored’ the engines. The Regional Manager never came back to the complainant on the matter. He believes that his complaint prompted his line manager to embark on a campaign of bullying against him.

Alleged retaliatory action following on from his complaint in early 2016.

In November 2016, the line manager’s brother who held the position of Team Centre Manager conducted the employee appraisals in the main office and in front of all other employees. Each of the employees were asked if they agreed with their appraisal and, if so, they were to sign the paperwork. This took a few minutes. The complainant, in contrast, was singled out in front of his colleagues and ushered from the main office to the canteen to review his 30-minute appraisal in private, but in full view of all other employees. The team leader furnished him with a negative appraisal (3 out of 4) which was the worst appraisal he had ever received. The appraisal stated he did not carry out extra duties when asked. He had, in fact, performed extra duties; he had taken on the job of acting team leader; he frequently drove to cover for colleagues absent on sick leave which meant much longer driving times for the complainant. The team leader had approved the expenses for him arising from these extra tasks. He was instructed to sign the appraisal. He was not told he had the right to refuse to sign it. He was not told of the appeal option. He believes the negative appraisal had a detrimental effect on his future internal job applications. The team leader was of the complainant’s difficulties with his line manager.

He had been required to visit the company doctor when he had been certified unfit to work by his own GP and that no other colleagues had been treated in the same way in similar circumstances. If his wife tried to hand his team leader his medical certs, he would refuse them and walk off.

Complainant’s efforts to rectify matters.

At a meeting on 8 October 2017, the complainant informed the HR manager that he had been bullied by both the line manager and the Team Centre Manager. He emailed HR prior to the meeting raising his complaint against each party and raising several concerns for his safety. He stated at the meeting that the team leader, (his line manager’s brother) had given him an unfair appraisal on 8 February 2017. He complained that he had been required to visit the company doctor when he had been certified unfit to work by his own GP and that no other colleagues had been treated in the same way in similar circumstances.

He informed the HR Manager, that his line manager had photographs on his computer with him holding a firearm and in a paramilitary uniform. He told HR that his line manager had spoken of his connections to paramilitary groups and discussed the fact that he had several firearms. He told HR that his line manager had singled him out as a person that had "ratted" on him for passing cars that did not pass the emission standards, had spread rumours about him amongst his work colleagues (that he had ratted on him, he could not be trusted etc) and had also told independent third parties (external examiners), who were at the time auditing the test centre, that the complainant had "ratted" on the fact he was passing cars without making proper checks. The complainant advised HR of his fear of reprisals from the line manager if he made a formal complaint or should it ever be known that he had made these disclosures. He wanted the respondent to formulate a solution. He was not offered a transfer.

The complainant declined HR’s offer of mediation as he felt this was an inadequate response to a possible physical reprisal from his line manager who frequently declared his support for the Republican movement. The complainant’s family subscribed to a different political tradition, had served that and had had honours bestowed on them by the United Kingdom. This added to the complainant’s unease about his line manager who was prone to display images of himself armed with a gun and a taser. The complainant stated that he was unable to differentiate between a real gun and a replica or whether a gun was loaded or unloaded. The respondent showed a disregard for the threat to which the complainant felt exposed.

The complainant felt the better path was to seek employment in another centre. He applied for 4 positions; he was unsuccessful in 3 of these applications. He was offered the position of a vehicle Inspector. He moved into that position in another town in January 2018.

Additional factors contributing to his design to terminate his employment.

Failure to secure promotion.

He applied for 4 promotional positions unsuccessfully. He applied for two maintenance technician positions in May 2016 and in May 2017. When he was not given an interview, he asked what qualifications were needed. The HR officer said, “something to prove you won’t blow yourself up”. HR advised him that he did not have the requisite QQ1 Level 6 or equivalent electrical qualification. He undertook an additional training course to help him with his applications. The respondent failed to identify the qualifications required for appointment in these 2 positions prior to the selection of the candidates.

He applied for a team leader’s position with the respondent in October 2017. He got no response to his application.HR advised him that they had not received his application. He was qualified for this job for which he was not interviewed. He furnished a copy of his application to HR. The position had by now been filled.

He applied and was offered the position of a vehicle inspector. He moved into that position in another town in January 2018 with an additional €2000-3000 per annum, but it was further from his home so extra driving costs were incurred

GDPR document.

He was threatened with withholding of his salary and dismissal when he asked for more time to consider the new GDPR document in May 2018. He objected to being asked about his health. Monthly threats issued after May 2018 concerning the withdrawal of his salary if he didn’t sign the form.

Loss of Productivity Bonus.

A productivity bonus was not paid to him in November 2017 and September 2018.The complainant queried this with his Regional Manager who told him it was withheld as he had failed two audits in a 12-month period. Other employees did not lose this bonus.

CA-00028728-001. Complaint under section 27 of the Organisation of Working Time Act, 1997.

At the hearing the complainant accepted the respondent’s evidence that in the referable period – 30 November – 29 May 2019, he was on annual leave on the dates for which a breach of the Act of 1977 could be claimed.

CA-00028699-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The respondent disputes that the complainant was dismissed. He voluntarily resigned his employment on 31 December 2018.

The respondent submits that the behaviour complained of by the complainant against the line manager in early 2016 does not constitutes bullying or harassment.

The complainant’s complaint concerning doubtful methods for the testing of emission standards in 7 vehicles, submitted by the complainant to the Regional Manager, was reported to the relevant national authority and was investigated. The HR manager gave evidence that the 7 complaints were logged and investigated. Three of these 7 vehicles were tested by the complainant’s line manager. No action was deemed necessary against him as he was not responsible for any defects in the testing process. Concerning the remaining 4 vehicles, the result was two written warnings were given to two staff members.

The screensaver image on the line manager’s laptop to which the complainant objected and which came after his complaint about emission testing methods, is the subject of his complaint, and showed the line manager wearing a replica uniform of the Irish Volunteers. The HR manager explained that these uniforms and symbols were worn by the line manager at the time of the 100th anniversary commemoration for the 1916 Rising. They were posted on the staff internet and were not sent to the complainant alone; it was visible to all staff. It was stated on the line manager’s message on the internet that it was a celebration of the anniversary of the Easter Rising. The taser gun in the screensaver image was not directed at the complainant. The gun which the line manager was holding was a replica gun and not a real gun. Outside of the screen saver image, the complainant never previously mentioned the display of a replica gun, nor was a date for same provided, nor was this information ever submitted to the respondent.

The respondent’s barrister disputes that there is anything wrong with memorialising historical events or in wearing the Easter Lily. Tricolours should not be seen as an object of intimidation or sectarian. There is nothing wrong in supporting the Republican movement. Nothing done by the line manager contrary to what has been stated could be seen as intimidatory. This episode does not satisfy the legal definition of bullying or harassment.

The complainant refused to allow the details to be divulged to the line manager, or for a formal process to commence. The respondent states that the complaint about these acts predated his resignation by 15 months and the actions themselves by a longer period.

Alleged unfair appraisal of complainant.

The Team Centre Manager gave evidence that he appraised the complainant in the canteen in the same manner as everybody else. His report of 8 February 2017, states that he got 3/4; “Good Performance- meets job requirements regularly”. He gave him a three as he found that the complainant would not take on any extra duties other than for when he was paid. The score of 3 based on 2016, was the same as in previous years and matched the mark given to him prior to him making the complaint about testing for emission standards. The complainant’s disagreement was recorded. If an employee disagrees with the appraisal, he can refuse to sign it. The complainant signed the appraisal report. He did not pursue a grievance on this matter.

Referral to company Doctor.

The respondent advised that the complainant’s sick cert had mentioned “spinal injuries”. This is a red flag for employers whose employees are engaged in bending down and entering and exiting vehicles. The complainant’s contract allows for the referral of an employee to a company doctor. He was absent for 40 days. The complainant did not raise any grievance about this matter in December 2018 when it occurred.

Lack of career progression.

He applied for two maintenance technician positions in May 2016 and May 2017 for which he did not possess the QQI level 6 qualification. He was told after the second attempt of the necessary qualifications. He did not have the requisite experience in maintenance. The respondent denies that the HR manager ever used the expression “when you won’t blow yourself up”.

Regarding the complainant’s application for a team leader’s position in December 2017, the HR manager explained that an oversight had occurred regarding his application for a team leader position –a staff member had failed to pass his application on. She instructed that all future applications be considered. The HR department apologised to him as they had mislaid his application.

He did not qualify when the same position arose again

Request for a transfer.

The HR manager stated that he was on the transfer list from October 2017. There were no available slots into which the respondent could transfer the complainant. Transfers happen when a position becomes available. He applied for and was successful in his application for a vehicle inspector’s role in another location in December 2017.He took up the position in January 2018. This appointment had nothing to do with his complaints about his line manager. The Regional Manager gave evidence attesting that candidates were selected on the basis of merit.

Refusal to sign GDPR doc.

He was requested to acknowledge receipt of the GDPR document. He was not requested to agree its contents. No new or further information was required over and above what he had already supplied. The respondent believed that it was appropriate and necessary to inform employees of the GDPR requirements on foot of legislation introduced in May 2018. The respondent needed him to agree to use of his bank details to pay salary. He was given 6 months to consider the document and he refused to sign for receipt. The respondent viewed this as wilful insubordination. The matter did not advance to the disciplinary stage.

Bonus.

Regarding the non-payment of the bonus to the complainant in November 2017 and September 2018, the respondent’s Productivity Incentive Scheme states” to qualify for the reward, the employee must have full rostered attendance for the period and the shift must have attained above 90% in any operational compliance audit for that period “. The bonus is paid in 2 instalments. The complainant failed 2 audits undertaken by the AA on cars which he had tested. He had 40 days sick leave absence in the previous year. The company applied the deduction of the bonus as he didn’t meet the requirements of the scheme.

Complainant failed to use the procedures.

The HR manager gave evidence of the complainant’s opposition to any formal procedure in October 2017. He did not wish to progress matters. At the meeting with the HR manager on 8 October 2017, the complainant asked the HR manager not to take notes. She advised the complainant that for his complaints to move forward, she would have to disclose his identity to his line manager. He refused mediation. The HR manager advised that had the complainant stated that he was uncomfortable with internal mediation, they would have engaged the mediation services of the WRC. He offered no other solution. In relation to his stated fear of a reprisal, she advised him of the EAP programme and also of the option of reporting the matter to An Gardai.

The HR manager wrote to him in December 2017 stating that she would keep the file open for him to consider his options. She wrote to him in August 2018 to state that she was closing the file as she had no response to her offers. He had simply let matters fall into abeyance by not contacting HR despite her letters to him.

Complainant’s behaviour after the transfer in January 2018.

The Regional Manager who managed the complainant from January – December 2018 in the new centre, stated in evidence that until today he was entirely unaware of any concerns on the part of the complainant. The complainant declined his offer of the exit review in which the complainant could have identified his concerns. The complainant told the Regional Manager that he had secured another position nearer home and he would have more autonomy in the new job. There were no grievance or performance issues outstanding at the time of his resignation.

The Law and constructive dismissal.

Section 1 (b) of the Unfair Dismissals Act, 1977 as amended defines constructive dismissal 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 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.”

In circumstances where the complainant is now claiming that in accordance with section 1(b) above, the conduct of the employer entitled him to terminate his contract of employment, he gave no indication in his notice of resignation that his resignation was in anyway attributable to the conduct of the respondent.

The respondent refers to the burden of proof which rests with the complainant in a complaint of constructive dismissal, and referred to the tests set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) 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 to put up with it any longer, the employee is justified in leaving”

The respondent submits that no breach of contract occurred in the failure to pay the complainant a bonus, the requirement to attend a company nominated Doctor, the requirement to no more than acknowledge receipt of GDPR requirements and in the conduct of the the appraisals.

Did the respondent’s behaviour meet the threshold of behaviour so intolerable for the complainant to conclude that resignation was the only option?

The respondent relies on the EAT decision of Daniel O’ Gorman v Glen Tyre Company Limited UD 2314/2010. There the tribunal commented that the burden of proof on an employee in a complaint of constructive dismissal “is a very high one”. They found that the complainant failed to inform the employer fully of the complaints being made against him and that as a consequence the employer was denied an opportunity to resolve the matter.

Their failure to do so left the employer powerless to rectify the situation.

The respondent also relies on UDD1810

The respondent had failed to transfer an employee who had experienced an assault from a client in the workplace. There were no suitable alternative positions. The court did not accept that this constituted a fundamental breach going to the root of the of her contract. The court did not accept that the employer’s behaviour was so unreasonable as to warrant that complainant’s resignation as the Court found no evidence to indicate that she made reasonable efforts to address her grievances before resigning.

The respondent in the instant case states that the complainant failed to elevate the request for an acknowledgement of the GDPR statement, being assessed by a company doctor after 40 days of absence with a back injury, the withholding of his bonus and the appraisal score to a grievance He presented them as reasons for resigning after the fact. He was offered mediation, the option of submitting a formal complaint and thereafter the transfer list concerning his allegations of bullying and threatening behaviour. His fear of being threatened should be seen in the context of his decision not to formalise the complaint. Some of these matters predate his resignation by a number of years. He was allowed seek a transfer to another centre.

His complaint cannot succeed.

CA-00028728-001. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The referable period for this complaint is the 30 November2018 to 29 May 2019. He resigned on 31 December 2018.

The respondent states that the complainant was on annual leave and did not work on the dates in December 2018 on which a breach could have occurred.

CA-00028699-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I am obliged to establish if section 1 (b) of the Act of 1977 operates to validate the complaint of constructive dismissal in the instant case. Section 1 (b) states

“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.”

In light of the statutory definition contained in section 1 of the Act of 1977 as amended, the established principles adopted by the relevant fora and the courts, the onus lies with the complainant to demonstrate that his resignation was justified.

In justifying his decision to terminate his employment the complainant will have to demonstrate that the circumstances of his dismissal met the tests as set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) 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”.

and the reasonable test was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

These tests were followed in a line of Irish authorities including Paris Bakery and Pastry Ltd v Mrzljak DWT 68/2014 and cited by the respondent.

Was there a repudiatory breach of the complainant’s contract of employment?

It’s clear that the complaint faced many disappointments. He failed to secure promotion, but the evidence was that he did not possess the qualifications necessary for the two maintenance posts in May 2016 and May 2017. He did not succeed at interview for the team leader’s position in 2017. The complainant has a legitimate grievance concerning the failure of the respondent to process his application for the team leader’s position in October 2017 due to an error. But there were other means at his disposal short of a complaint of constructive dismissal to address this matter.

His bonus was withheld, but the evidence shows that he did not satisfy the requirement for full rostered attendance as set out in the respondent’s Productivity Incentive Scheme. Cars which he had tested had failed in two audits by an external body. I find that he did not meet the requirements of the scheme. He did not pursue a grievance about the bonus.

He cited the respondent’s referral of him to the company doctor where he had submitted certs from his own GP, but that, again, is provided for in his conditions of employment.

Based on the evidence I find that the complainant has failed to identify a breach of contract

The conduct of the respondent

The complainant made a report to the respondent about what he viewed as questionable testing methods being promoted by his team leader who was not held liable. The complainant believes that his report prompted the Team Centre Manager (brother of the line manager) to give a sub-optimal appraisal which would adversely affect his promotional prospects. He quotes this as an instance of bullying. But the uncontested evidence at the hearing was that the score of three was consistent with previous years and was the score attained before he made any complaint about testing methods. He did not pursue a process to invalidate or question that result. He did not produce evidence to show the amount of times or when or how he took on unpaid extra work. That may or may not be a fair indicator to use in an appraisal, but the complainant must show it is unfair. He did not refuse to sign the appraisal though he did register his objection to the remark about an unwillingness to take on extra duties. He did not appeal the result, merely said it was unfair and that the score derived from a complaint he had made about the appraiser’s brother. I find that on the basis of the uncontested evidence e that the appraisal score was unchanged pre and post the submission of his complaint about testing methods.

The complaint that the respondent failed to deal with the complainant’s fears of a reprisal.

The complainant in cross examination stated that the main driver moving him to terminate his employment was the fear of a reprisal from his team leader for having” ratted” on him. The word “ratting” can have sinister connotations for some people, and I accept that the remark is undeserved and unacceptable, but if it’s just left hanging there as opposed to doing anything about it is difficult to know what responsibility can be ascribed to the employer.

The complainant asks me to accept that his fear of a reprisal from his line manager, accentuated and justified in the complainant’s view because of the line manager’s political associations, and in response to his complaint concerning testing methods constrained him from allowing a procedure to be instigated to address his concerns. The paraphernalia and dress adopted by his line manager was in the context of a historical commemoration sponsored by the state. The uniforms donned by participants in the commemorative ceremonies had the approval of the state during the commemoration. Enmity between different historical traditions has waned. The existence of both traditions in some of their aspects have been acknowledged and mainstreamed by the state. The complainant’s evidence about the taser gun was contradictory and unconvincing

The complainant seems to expect that the respondent should have taken some form of unspecified action against the line manager based on reports tendered by the complainant, but which should not be disclosed to his line manager who was to be denied the opportunity to examine and respond to the complaint. The complainant expected a transfer based on complaints about a possible physical threat from a colleague which should lie unexamined and unproven. The complainant believes that the failure of the respondent to adopt such a course justified his decision to resign along with the other cited factors. But he impeded the respondent from using the only agreed process to hand to investigate his fears. In addition, he did not go to the Gardai.

A heavy-handed approach to the failure to sign GDPR document.

The respondent emailed all staff who had failed to acknowledge receipt of the document and it may have been heavy- handed to suggest disciplinary proceedings but given the basis for the respondent seeking an acknowledgement, I find that it is not behaviour which could be deemed to be so unreasonable as to contribute to his decision to resign.

Complainant’s conduct after his transfer in January 2018

He did not pursue a grievance about the bonus or the GDPR issue or the unsuccessful applications for positions.

The complainant’s own behaviour must be considered. Though he brought the complaint to the attention of the HR manager in October 2017, and he transferred into a new centre and away from the line manager in January 2018, he remained with the respondent for 15 months after he had made the complaint. No mention of any matters was made after he transferred to the new location in January 2018. That is not the behaviour of someone who finds his employer’s behaviour so intolerable as to compel him to terminate his employment.

With regard to the reasonableness test, the decision of Conway v Ulster Bank Ltd. UD 474/4/1981 applies in the instant case. The failure of the complainant to activate the grievance procedure means that he has not discharged his obligations to exhaust the internal procedures apart altogether from declining the invite to identify his concerns in the suggested exit review at the point of submitting his letter of resignation.

Based on the evidence and for the reasons set out above I find that the respondent’s behaviour was not so unreasonable as to justify the complainant’s decision to terminate his employment.

I find that the complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp (1978).

I do not find the complaint of constructive dismissal taken under the Unfair Dismissals Act 1997-2015 to be well founded.

CA-00028728-001. Complaint under section 27 of the Organisation of Working Time Act, 1997.

This complaint concerns the alleged failure of the respondent to provide daily rest periods as required by section 11 of the Act of 1997.The reckonable period is 30 November 2018-29 May 2019. The uncontested evidence at the hearing was that the complainant did not work on the weekend dates on which a breach could have occurred.

I do not find this complaint to be well founded.

CA-00028699-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I do not find this complaint to be well founded.

CA-00028728-001. Complaint under section 27 of the Organisation of Working Time Act, 1997.

I do not find this complaint to be well founded.