Complainant

Respondent

Anonymised Parties

A Complainant

A Sports Centre

Representatives

Bernadette Thornton, SIPTU

Peter McInnes, McInnes Dunne Solicitors

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-00016504-001

22/12/2017

The complainant was employed by the respondent from 18 June 2012 until 22 December 2017 when he alleges that he was subjected to a constructive unfair dismissal.

The complainant commenced employment as a grounds maintenance operative with the respondent company on 18 June 2012and was subsequently promoted to grounds maintenance supervisor. The complainant submitted that he took steps to ensure that he was treated fairly by his manager during the last two years of his employment. He raised grievances, the outcome of which was never in his favour. The relationship between the complainant and his manager only deteriorated. The complainant states that he sought the assistance of the WRC by way of mediation and an agreement was drawn up and was signed by the complainant and his manager in July 2017. The complainant contends that in August 2017, the alleged behaviour of his manager going directly to his colleagues happened again. The complainant submits that workplans were agreed on 14 August 2017 at a team meeting. The complainant states that he had a printed copy of the workplan and a specific task namely shock waving was not scheduled on same. The complainant having concerns about same e-mailed his manager after both of his colleagues had told him they were scheduled to carry out this work from Thursday to Saturday. The complainant maintains that, as supervisor, he should have been informed of the change to the work schedule. The complainant submits that as he was concerned that the old ways were slipping back, he e-mailed his manager on 22 August 2017 and asked why he was not informed of the changes to the workplan. The complainant states that on 23 August, he and his manager had a one-to-one meeting with the agreed note taker. The complainant submits that he did not discuss the changes at this meeting due to the confidentiality of the WRC agreement. On 24 August, the manager called a meeting of the full grounds team. The complainant maintains that staff were not aware why this meeting had been called. The complainant was taken aback when his e-mail was the subject of the meeting. The complainant had requested that the matter be discussed privately between the manager and himself only. The complainant submits that he felt that the spirit of the WRC agreement was being ignored and he went to HR seeking advice. He states that after seeking advice from HR, a full-blown investigation under the dignity at work policy commenced and the outcome of same was that the complainant faced disciplinary charges and was dismissed from employment on 13 October 2017. The complainant appealed his dismissal and this was overturned on 13 December 2017.

The appeal outcome was a Final Written Warning and redeployment to another department to the position of cleaner. The complainant states that his pay rate reduced by €2.08 per hour and his supervisor status was gone. The terms of his employment changed from five days per week Monday to Friday to five over seven. The complainant submits that this was unacceptable to him and he resigned his position on 22 December 2017. The complainant submits that he felt this was the last straw given that he had sought HR guidance. He had a WRC signed agreement and he found no support when he identified times when he truly believed his manager was undermining his role as supervisor. The complainant states that following the employer investigation under the dignity at work policy the outcome was that the complainant’s claim was vexatious. The complainant alleges that his manager countered this with his own complaint against the complainant in September 2017 stating he could no longer manage the complainant. This was never covered with the complainant and he states that all his reviews were satisfactory. While the manager alleged he had warned the complainant not to smoke on campus, he states this was not the case; he had asked the complainant not to smoke while using the strimmer and the complainant ceased smoking while using the strimmer. The complainant also submits that the manager used cctv evidence of the claimant leaving the site without permission and the period he reviewed the footage dated from August to September 2017. However, the company policy on cctv states that it should only be used if the allegation is in dispute. The complainant states that he admitted to the charges stating that he had established a custom and practice and this was the first time he had been challenged on leaving the premises, others leave without permission and have never been sanctioned or subject to investigation. The complainant states that covert recording of meetings was done to protect himself as what was agreed to at meetings differed from time to time. The complainant asserts that this further demonstrates the lack of trust he had in his working relationship and why he sought to have the matter addressed through the grievance process and WRC mediation process.

The complainant’s union representative submits the following in support of the complainant’s claim of constructive unfair dismissal;

(a)    changing an employee’s duties or normal working place – the complainant was moved to a totally different department to the role of cleaner

(b)    reducing an employee’s pay/salary – the complainant’s pay was reduced by €2. 08 per hour

(c)     undermining/changing an employee’s authority and/or status – his supervisor status was removed

(d)    changing any of the employee’s terms and conditions without obtaining the employee’s prior agreement to such changes – the working week would be five over seven going forward, the complainant was not given a choice on the changes made to his existing contract

(e)    unfair use of the disciplinary procedure- the complainant used the resolution processes to address his concerns but when he sought help from HR, he found himself dismissed

(f)      actions which lead to a breakdown in the mutual trust and confidence between the employer and employee which is implicit in the contract between the parties such as not taking an employee’s grievance seriously – the complainant did everything in his power to preserve his position   

The respondent states that the complainant was employed as a grounds maintenance supervisor. It states that the complainant was initially employed on 18 June 2012 on a fixed term contract and on 15 February 2013 he was employed on a full-time permanent contract as a grounds maintenance operative. The respondent submits that in July 2013, the complainant was promoted to grounds maintenance supervisor. The respondent states that the complainant reported to Mr. R, head of maintenance for the respondent. The respondent states that Mr R is a brother in law of the complainant. The respondent states that from the commencement of his employment until April 2016, the complainant’s employment with the respondent was without incident.

The respondent submits that in April 2016 during a meeting with Mr R, the complainant requested a pay review. The respondent contends that notwithstanding the fact that the respondent does not normally conduct ad hoc pay reviews, the respondent conducted a formal benchmarking exercise through HR advisors to determine if the complainant’s salary was in keeping with other similar industries. The outcome of the benchmarking exercise was that the complainant’s salary was in keeping with industry norms. The respondent states that the complainant was dissatisfied with the outcome of the benchmarking exercise and submitted a grievance in accordance with the respondent’s Grievance Policy in relation to same. The respondent submits that the grievance not only related to the complainant’s pay review but also concerned other issues between the complainant and Mr. R. The respondent states that the complainant’s grievance was fully investigated by Mr. G, Sports Operations Manager with the respondent. The respondent asserts that the complainant’s grievance was not upheld. The respondent states that in his report, Mr. G noted that the relationship between the complainant and Mr. R was “strained and requires immediate attention and work from both parties in order for the pair to repair their professional and personal relationships”.

The respondent submits that the complainant appealed Mr. G’s decision and the appeal was heard by Mr. M, Chief Operating Officer of the respondent on 10 October 2016. The complainant’s appeal was not upheld. The respondent states that Mr. M was of the view that the complainant’s relationship with Mr. R had been damaged and recommended that a mediator be appointed to attempt to reconcile the differences between the complainant and Mr. R. The respondent outlines that throughout the grievance process and indeed throughout all of the matters the complainant raised, the complainant had the benefit of union advice and representation. The respondent states that following Mr. M’s recommendation, a process of appointing an agreed mediator was undertaken by the respondent. The complainant selected Ms. B as mediator. The respondent outlines that regrettably the mediation process was unsuccessful as the complainant refused to meet Mr. R and/or the mediator without his trade union representative present. The respondent submits that the complainant attempted to insist on having trade union representation at “business as usual” meetings with the respondent. The respondent submits that the complainant was advised that he did not have the right to trade union representation at standard, normal work-related meetings.

The respondent outlines that in February 2017, the complainant raised concerns regarding his job description. It states that following a meeting to discuss same, on 22 March 2017, the complainant agreed that the job description held on file for him accurately reflected his duties. The respondent states that on 3 April 2017, the complainant issued a second grievance against Mr. R and that grievance was investigated By Ms. L, Customer Services Manager with the respondent pursuant to the Dignity at Work Procedure. The respondent outlines that in her recommendations, Ms. L made a similar recommendation to that made by Mr. M, namely that the complainant and Mr. R should engage in a process of mediation which was accepted by both parties. The respondent submits that on 7 April 2017, the respondent attended a hearing before the Labour Court to respond to a complaint made by the complainant pursuant to section 20 (1) of the Industrial Relations Act 1969 in relation to the complainant’s pay review. The respondent states that following submissions from both parties before the Labour Court, the complainant withdrew the complaint. By agreement, the parties approached the WRC for the purposes of the mediation process. Following a number of meetings conducted between the parties and the agreed WRC mediator, the parties agreed the terms of a mediation agreement which was signed on 26 July 2017.

The respondent stated that it hoped that the signing of the mediation agreement would mark a change in the relationship between the complainant and Mr. R and would allow them to move forward in a constructive fashion but regrettably that transpired not to be the case. The respondent outlines that on 25 August 2017, the complainant raised a further complaint against Mr. R in relation to lack of knowledge about changes to the work schedule. That complaint was investigated pursuant to the Dignity at Work Policy by Ms. H, Finance Manager with the respondent. The respondent states that it should be noted that the complainant suggested that the other members of the grounds maintenance team be interviewed individually regarding the subject of his complaint so that they could talk confidentially. The respondent outlines that as can be seen from Ms. H’s report, none of the other members of the team supported the complainant’s version of events. The respondent submits that during the course of the investigation process, a number of other concerns regarding the complainant’s conduct emerged. Those concerns included unauthorised audio recordings of work meetings, including an investigation meeting with Ms. H, smoking in work buildings and vehicles, unauthorised absence and unprofessional conduct towards colleagues.

The respondent submits that when questioned, the complainant freely confirmed that he had been recording workplace meetings without the knowledge or consent of his colleagues. The respondent states that he was asked to and did hand over his work mobile phone for examination. It states that the complainant did not however reveal to Ms. H that he was actually recording his meeting with her during which his covert recordings were being discussed. The respondent states that a regrettable aspect of the ongoing work-related issues between the complainant and Mr. R is the impact of those issues on their personal relationship. The respondent states that the complainant and Mr. R are married to sisters. The respondent submits that Mr. R had advised Ms. H that the complainant’s wife had been discussing the ongoing issues at work between the complainant and Mr. R with his wife and that this was adding to the profound impact that the complainant’s repeated complaints about him were having on his professional and personal life. The respondent states that at his interview meetings with Ms. H on 13 and 14 September 2017, the complainant confirmed that he was aware that his wife had contacted her sister to discuss matters but stated that he could not control his wife’s actions. The respondent states that the complainant’s position in this matter was accepted by Ms. H.

The respondent submits that as can be seen from Mr. H’s report, the complainant’s complaints against Mr. R were not upheld. In addition, it states that Ms. H considered it appropriate to refer some of the issues which had arisen during the investigation process regarding the complainant’s conduct for investigation pursuant to the Disciplinary Process. The respondent states that disciplinary hearings took place on 6 and 10 October 2017 and these were chaired by Mr. McD, Marketing Manager with the respondent. It states that the complainant attended together with his union representative and the complainant was afforded the right to cross-examine some of his colleagues. The respondent outlines that the conclusion of the disciplinary process was that Mr McD considered it appropriate to impose the sanction of dismissal on the complainant. The complainant was entitled and did appeal Mr. McD’s decision by letter of 19 October 2017. The respondent outlines that following the conclusion of the appeals process, the independent IR consultant, Mr. K delivered his decision on 13 December 2017. Mr. K overturned the decision to dismiss the complainant and instead demoted him from the position of supervisor to a suitable operative role outside of the Grounds Maintenance Department with a final written warning. The respondent states that following the delivery of Mr. K’s decision, Ms. McB sought to engage with the complainant in relation to his return to work and appointment to his new position. The respondent outlines that by e-mail of 14 December 2017, the complainant’s SIPTU representative advised the respondent that the complainant would not accept the sanction imposed on him by Mr. K and would not be returning to work. The respondent submits that the complainant resigned his employment by e-mail of 22 December 2017.

The respondent submits that it is well established in constructive dismissal cases that the complainant bears the burden of proof as to dismissal. Section 1 of the Unfair Dismissals Act provides that a constructive dismissal arises upon;

“a termination by the employee of his contract of employment with his employer, whether prior notice of termination was or was not given to 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”.

The respondent states that it is well established in a series of decisions of the EAT and more recently, the WRC, that the circumstances in which notice can or may be dispensed with are indeed rare and set a high standard of proof for an employee. The respondent submits that the statutory definition above comprises two tests, either or both of which the complainant must be in a position to establish in order to show that he was entitled to terminate his contract of employment. The first of these tests has been defined by Lord Denning MR in a UK Court of Appeal decision Western Excavating (ECC) Ltd. v Sharp [1978] ICR 221 as;

“if the employer is guilty of 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 as discharged from any further performance.”

The alternative “reasonableness” test asks whether the employer “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, {if so} the employee is justified in leaving.”

The respondent submits that the complainant has failed to establish this burden of proof or to satisfy either test outlined above for the reasons set out in its submissions and which was adduced in evidence. The respondent states that consequently, the complainant has failed to establish that he was constructively dismissed, particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” as provided for at section 6 (7) of the Unfair Dismissals Act. The respondent submits that there are no reasonable grounds, or any grounds at all, that would give rise to a claim of constructive dismissal within the meaning of the UD Act. The respondent submits that there is no evidence whatsoever that it either breached a significant term, express or implied, going to the root of the complainant’s contract of employment, or that it conducted itself so unreasonably that the complainant could be justified in leaving. It states that on the contrary, the respondent at all times conducted itself in a fair and measured manner towards the complainant. The respondent states that it fully and impartially conducted investigations into the numerous complaints brought by the complainant and on two occasions, it facilitated a process of mediation between the complainant and Mr. R.

The respondent states that within a month of the WRC Mediation Agreement being signed, the complainant had made another complaint against Mr. R without, by his own admission, checking his facts in advance. It submits that any suggestion that the complainant was merely seeking HR’s advice regarding the WRC agreement and did not wish to have his complaint investigated does not bear scrutiny. The respondent maintains that Ms. McB made the complainant’s options explicitly clear to him. It states that at no point did the complainant who, by this stage had gone through 2 complaint processes, 1 appeal, 2 mediation processes and a Labour Court referral, say he did not want his complaint investigated. The respondent submits that the complainant encouraged the respondent to interview his colleagues, presumably because he expected them to support him but they did not and the complainant has to live with the consequences of the investigation of his complaint. The respondent outlines that as is standard, the Dignity at Work Policy makes it clear that any malicious or knowingly false allegation may be subjected to disciplinary action. The respondent contends that Ms. H was entitled to hold that some of the complainant’s allegations were malicious and respond accordingly. The respondent submits that it cannot credibly be contended by the complainant that the respondent was not entitled/obliged to investigate issues regarding his conduct which came to light during the investigation of his complaint against Mr. R. The respondent submits that Mr. R was entitled to raise issues of concern to him in his response to the complaint against him. The respondent contends that it was entitled to have regard to those issues and act accordingly and did so by invoking its Disciplinary Policy and appointing Mr. McD to chair that process.

The respondent submits that it is important to note that not all of the matters which were referred to the disciplinary process emanated from Mr. R and that the issue of the complainant making covert recordings arose in the course of Ms. H’s (Finance Manager) meeting with Ms. H, a witness the complainant asked the respondent to interview. The respondent states that admitting making covert recordings of meetings, the complainant did not even have the courtesy to advise Ms. H he was recording his interview meeting with her. The respondent submits that based on the evidence before him, Mr. McD was entitled to find as he did and impose the sanction of dismissal. It submits that a number of the issues which formed the subject of the disciplinary process, such as smoking on site in defiance of company policy would, on their own, warrant disciplinary action up to and including dismissal. The respondent states that when taken together, the complainant’s actions warranted the sanction of dismissal.

The respondent contends that as further evidence of the respondent’s good faith and reasonable approach to the entire matter, it agreed to appoint an independent chair, Mr. K, an IR expert to hear the complainant’s appeal against his dismissal. The respondent also accepted Mr. K’s decision to overturn the decision to dismiss and was willing to re-engage the complainant in a new role.

The respondent submits that this case is a classic example of the application of the “band of reasonable responses” available to an employer finding itself in the position of the respondent. The respondent cites the following caselaw in this regard; Foley v Post Office [2000] ICR 1283, Anglican Home Improvements Ltd. v Kelly [2005] ICR 242, Doyle v Asilo Commercial Ltd. [2008] IEHC 445 and Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229. The respondent submits that both the decision to dismiss made by Mr. McD and Mr. K’s decision to overturn the dismissal and impose a lesser sanction fell within the “band of reasonable responses” available to an employer finding itself in the position of the respondent. The respondent states that if it is accepted that the respondent’s actions fell within the “band of reasonable responses” available to it, the respondent’s actions cannot give rise to a successful claim of constructive dismissal under the Act. The respondent submits that the complaint must fail. It states that without prejudice to the above submissions, it submits that the complainant is guilty of contributing, by his actions, to the situation in which he finds himself to a very significant extent and that any award of compensation to which he may be entitled in the event that the claim is upheld should be reduced substantially.

As the complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the complainant to establish facts to prove that the actions of the respondent were such as to justify him terminating his employment. Section 1 of the UD Act 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 the 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”. Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “contract test”. This requires that an employer be “guilty of 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 as discharged from any further performance” as held in Western Excavating (ECC) Ltd. v Sharp [1978] IRL 332.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted 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, if so he is justified in leaving. The question for me to decide is whether, because of the conduct of the respondent, the complainant was or would have been entitled, or it was or would have been reasonable for him to terminate the contract of employment.

I have carefully examined all the evidence in the instant case. I find that it is regrettable that there was a breakdown in relations between the complainant and his manager Mr. R who are brother-in-laws which resulted in interpersonal issues between the two of them. The catalyst to the current complaint relates to the complainant feeling that he was bypassed in relation to a change in work schedule (which he states he was never advised about). However, when the complaint was investigated by HR, the complainant’s colleagues backed up Mr. R’s version of events confirming that the work schedule was discussed at the operations meeting held on 14 August and that it was on the calendar of works for the week in question.

The outcome of the HR investigation was that the complaint was not upheld and was found to be vexatious. The complainant then found himself to be the subject of a counter complaint by Mr. R and Mr. R stated had he could no longer manage the complainant. Other issues came to light regarding the complainant’s conduct comprising unauthorised audio recordings of work meetings, including an investigation meeting with Ms. H, smoking in work buildings and vehicles and unauthorised absences. Mr. McD (Marketing Manager) following the investigation process found that the complainant was guilty of gross misconduct and imposed the sanction of dismissal. Upon my questioning of Mr. McD in relation to what aspect of gross misconduct resulted in him deciding to dismiss the complainant, I note that he stated that the smoking issue was the primary one together with the cumulative issues surrounding the complainant ‘s difficult history and the ongoing issues that came up with his manager Mr. R.

Having carefully adduced all the evidence in relation to imposition of the sanction of dismissal by Mr. McD, I find that while it appeared to be an ongoing issue in relation to the complainant smoking while on the job and taking extra leave (respondent stated that he extended his break time by 15 minutes on more than one occasion) once Mr. R made his counter complaint, HR made much of the issues regarding smoking and alleged unauthorised leave although in relation to the latter, it appeared to be custom and practice for some time that there was an unwritten rule which set morning breaks at 30 minutes and the complainant stated that his colleagues would also take the extra time on breaks. I note that in the respondent’s procedures in relation to CCTV footage, the policy states that CCTV should only be used if an allegation is in dispute. However, in the instant case although the complainant had admitted to smoking on the job and taking longer than the 15 minutes on the morning breaks, CCTV footage was reviewed and used against him in the disciplinary meetings.   I also note that the complainant made covert recordings of conversations he had with some members of staff of the respondent and while this is unacceptable I take on board his bona fides where he stated he was trying to protect himself given the breakdown in relations with his manager and given the events which transpired.

Having adduced the totality of the evidence in the matter, in my view the decision by the respondent to dismiss the complainant was an excessive and disproportionate sanction/penalty given the nature of the breaches by the complainant under the disciplinary code. In this regard, I find that there are aspects of retaliatory measures on behalf of the respondent as a result of the complainant exercising his statutory right to invoke the grievance procedure where he held the bona fide belief that he was being undermined by his manager. I am cognisant of Statutory Instrument No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures)(Declaration) Order, 2000 where it states that “the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.” It also outlines that Disciplinary action may include commencing an oral warning, written warning and other sanctions up to Dismissal. It states that “generally, the steps in the procedure will be progressive, for example, an oral warning, a written warning, a final written warning and dismissal. However, there may be instances where more serious action, including dismissal is warranted at an earlier stage”. Having carefully examined the evidence, I find that given the nature of the breaches involved, the sanction of dismissal of the complainant was excessive. I find that given the prior satisfactory record of the complainant, he should have been afforded the progressive nature of the steps in the procedure as outlined above. In the circumstances, I find that the complainant was not afforded fair procedures and natural justice. Accordingly, I find that the decision to dismiss was not within the range of reasonable responses of a reasonable employer.

I note that the respondent requested an IR expert to review the complainant’s appeal of the dismissal. In this regard, Mr. K (Independent IR Consultant) reviewed the appeal and the decision to dismiss was overturned and the complainant was given a final written warning. Mr K also made the decision to demote the complainant to the position of general operative. The outcome of the complainant’s appeal was that the complainant was demoted from his supervisor role in grounds maintenance to a role of cleaner and there was a reduction in his salary of €2.08 per hour. There was also a change in the complainant’s working week which would now be five over seven going forward. Having carefully examined this matter, I find that the sanctions/penalties imposed on the complainant resulted in a significant change in the complainant’s terms and conditions of employment. I find that these measures constitute a repudiatory breach of the contract of employment by the respondent. Given that the complainant worked with the company for almost six years and had a clean disciplinary record in that time, in my view these sanctions/penalties were too harsh. I am satisfied given the testimony of the complainant about his concerns regarding the completely different role and duties he was given and the difficulties he would have in accepting the new role as cleaner as in the past 30 years all his working experience was in the construction/grounds maintenance area. I am also cognisant of the loss of his supervisor status and how he felt degraded by this measure and the ensuing reputational damage to him. However, I am mindful that the complainant did contribute to the situation that gave rise to his constructive dismissal. In this regard, the complainant accused his colleagues of siding with his manager Mr. R     and in my view, the complainant’s conduct fell short of what might reasonably be expected of a supervisor and for those reasons, while I find that he has made out his claim of constructive dismissal, I find that he has contributed in part to his dismissal.

I find that the complainant was subjected to an unfair constructive dismissal. However, for the reasons outlined above, I am satisfied that the complainant did contribute to the situation that gave rise to his constructive dismissal. Accordingly, I have reduced the compensation on that basis and I award the complainant compensation in the amount of €6,750.

constructive dismissal