Complainant

Respondent

Anonymised Parties

A stagehand

A media production company

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-00022069-001

21/09/2018

The Complainant commenced employment with the Respondent in June 2012 and left on 22/08/2018.This complainant was employed as a stagehand and was paid €1170 per 54 hour week.

This complaint was received by the Workplace Relations Commission on 21/09/2018.

The complaint is referred on the instructions of our member, hereinafter called the Complainant that he was dismissed by the Respondent in circumstances where he believed there was no other option available to him given what he will contend was the unreasonable conduct of the employer in failing to provide a safe working environment for him.

Background

The Complainant has been employed since 2012 on each consecutive series of the television production (name redacted).

In or around 2015 the Complainant made a complaint of workplace bullying following the posting of what he considered unacceptable material in public areas and unacceptable comments which were referred to by those responsible as merely “workplace banter”.

Despite the Complainant making it known to his Line Manager (EN) that he did not consider this “workplace banter” and that it was having a profound and damaging impact on his wellbeing the “banter” continued.

A formal complaint was then made to the employer who engaged the services of an Independent Investigator.The investigation found that no bullying occurred as it was a “once off” and not sustained.

This came as a shock to the Complainant as he provided the names of six witnesses who gave evidence to the investigation that the inappropriate behaviour was an on-going issue.

The outcome of the investigation was confidential to the parties however it is our understanding that a recommendation was made by the Investigator that the employer would hold training on dignity in the workplace. It is our understanding that the employer subsequently conducted a training module on dignity at work.

However, following the conclusion of the investigation, the Complainant was left out of work for a full year and a half, missing his “turn” each time during the period.

In relation to “missing his turn” it is necessary for us to set out how the film industry in Ireland works.

Film in Ireland is supported by very generous tax reliefs under Statutory Instrument 4/2015. The provision of quality employment and training opportunities underpins the granting of the reliefs.

Crew are hired on fixed purpose contracts and between each series of a production or after each film the Crew are “stood down” which essentially means they are on a period of layoff until the commencement of the next series or film depending on what the project is.

The Claimant worked on each Series of the production of (name redacted) from 2012 and would be temporarily stood down and re-engaged when needed.

In addition, the parent Company, (name redacted) have a collective agreement with this Association which guaranteed the Union signatories to the agreement work on each series unless the contract was repudiated by either side.

The Agreement follows the principles set out in the Protection of Employees (Fixed Term Work) Act 2003 meaning as Crew secured their CID by the operation of law they expected to be recalled “in turn “ depending on length of service with the employer.

When the Complainant was not recalled after a period of layoff following the conclusion of the investigation he will testify that he made several calls to both his Line Manager (EN) and a member of the management team (Ms AO’C) advising of his availability for work and asking why others were being brought back before him. He never received a satisfactory answer.

In fact this Official also engaged with this employer in relation to one of the witnesses to the bullying complaint who also “missed his turn” following his evidence however this was resolved after 6 weeks.

The Complainant had sought assurances before formalising his grievance that there would be no adverse consequences for him. He was assured by both management and the Investigator that there wouldn’t.

Eventually the Complainant was returned to work but immediately he began to experience the same behaviours from those he had previously complained about and again it impacted on his mental health.

He spoke to both EN and Ms AO’C advising both of them that “nothing had changed” for him and that he could not continue to work in what he perceived as a hostile environment.   Further, it will be his evidence that EN did say “he knew the way “X” could be but nothing was done”.

Ms AO’C on the other hand asked the Complainant to rethink his decision to resign and to give her a couple of days to speak to others.

It has never been established what the outcome of the employer engagement with the alleged perpetrators was. Notwithstanding the employer did not put any safeguards in place or make any suggestions as to how procedures could be put in place to accommodate the Complainant or allay his fears and he was asked to sign a letter of resignation.

The Complainant therefore believed he had no other option but to terminate his contract of employment as he had fully engaged with the employer’s procedures which failed to address his workplace issues.

The Claim.

Our member believes he was unfairly dismissed by reason of constructive dismissal albeit the employer had conducted an investigation into his claims of bullying which had not been upheld. He fully believes that given the weight of the evidence his claim should have been upheld as the behaviours complained of were on-going and sustained.

Further the behaviours continued after his return to work and he again reported the issue to his employer.

The Complainant also believes that as there were no findings against him that the alleged perpetrator continued his insidious behaviour.

This Association is also aware that another member left the job because of this particular individual but he did not make an official complaint to management.

Given the impact on the health of the Claimant and notwithstanding that the employer had conducted an investigation when he returned to work and complained that the behaviours which were the subject of the original investigation continued the employer should have taken steps to allay his concerns by moving his location so that he would not encounter the alleged perpetrator on a day to day basis which is not unreasonable on film sets given that there is stage based work and location based work available.

Conclusion

We are asking that you find in favour of our members claim and to find that in all of the circumstances his decision to terminate his employment was reasonable in all of the circumstances.

In or around 2015 the Complainant made a complaint of workplace bullying following the posting of what he considered unacceptable material in public places and inacceptable comments which were referred to by those responsible as merely “workplace banter”.

A formal complaint was made to the employer who engaged the services of an independent investigator. An investigation was conducted over a period of three months, a number of employees were interviewed. The investigation found that no bullying had occurred as it was ‘once – off’ and not sustained.

The outcome of this investigation was confidential to the parties however the understanding of the Complainant’s representative was that there was a recommendation made by the investigator that the Respondent would hold training in the area of dignity in the workplace and that such training would be primarily for the head of departments.

When the Complainant returned to work after the end of season lay-off he again experienced unwelcome attention from one of the perpetrators, he again approached management to report this and was asked to give management a couple of days to address any issue and to talk to the employees concerned. The Complainant was adamant he was leaving and would not agree to anything said by management nor would he agree to allow time for things to be investigated.

This has been a difficult complaint to investigate.

My job, as adjudicator, is to look at the actions of the employer and decide were these the actions     of a reasonable employer.

Management did initially conduct an investigation – there was no outcome to this investigation, it was kept confidential. We do know that there was some training on Dignity at Work carried out after the investigation.

On the second occasion where the Complainant reported that things had started again he was adamant that he was leaving – one member of management asked him to stay and she would talk to the alleged perpetrators in an attempt address any issues that may exist. This was not acceptable to the Complainant.

The Complainant was represented at the hearing by his trade union representatives, the same representatives could have represented him in a grievance process against the Respondent, his actions in walking out of his job prevented the same representatives from this opportunity.

Any employee, to succeed with a complaint of constructive dismissal, must significantly utilise any internal procedures in place. In this instant case this did not happen, and it is for this reason, and only this reason that I am compelled to find that the complaint is not well found and therefore fails.

The complaint as presented is not well found.

Constructive Dismissal.