Complainant

Respondent

Anonymised Parties

A Services Officer

Government Department

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-00019702-001

11/06/2018

The Complainant says he was constructively dismissed by reason of the manner of his treatment by different levels of management and the failure to provide a safe system of work.

The Complainant was represented and a comprehensive submission was prepared on his behalf and read into evidence. The Complainant says he was forced to resign his position as he had been subjected to years of intolerable and demeaning behaviour by line and senior management.

The Respondent was represented and provided me with comprehensive submission and relevant documentation. The Respondent rejects that it acted unreasonably or that any conduct on it’s part could possibly be relied upon to support a claim that Constructive Dismissal was the only option open to the Complainant.

I have carefully considered the extensive evidence I have heard over two days of hearing. The Complainant has been with the Public Service since 2001. The Complainant had worked in an assortment of different offices over the years and ended up (in 2015) in a city centre office which served the public and in particular where the public could seek emergency assistance. This was a highly sensitive environment as the end users could be vulnerable and/or be in financial distress. The Complainant gave evidence that encountering the public was not always easy and it took all his skills to keep the operation running smoothly and quietly. In December of 2015 a client of the services made a complaint against the complainant when the Complainant had told him that his assigned appointment had been missed (through the client’s own tardiness) and he would have to await the next slot before seeing an office representative. The Complainant was never really given an opportunity to respond to the Complaint made, and a decision was made by the Complainant’s manager(JB) that the Complainant should henceforward work behind the counter and leave his colleagues to do the work of dealing with the public. The Complainant was not happy that the decision had been taken unilaterally when he had not seen the Complaint, had not been asked to reply and in circumstances where the Complainant had more general concerns for the welfare of Service Officers who could not ring the Gardai and had no panic buttons.

In any event, the Complainant was moved to the post room in and around January of 2016 wherein he worked diligently. The Complainant’s relationship with Mr. B was equivocal and the Complainant blamed Mr. B for potentially putting his life at risk in October of 2016 when he - Mr. B - sent the Complainant out into the Public Office area when he knew or ought to have known that there might be a danger out in the office in the form of a person brandishing a gun. As it happens no such person was there, but the Complainant genuinely believed that Mr. B had recklessly exposed the Complainant to a potential danger. I note Mr. B utterly denies this interpretation of events. The resentment created by this instance was to have a bearing on subsequent events.

Whilst in the Post Room the Complainant sometimes worked alongside a temporary Officer - a Ms. P. The Complainant believed that Ms. P was reading the mail of others in an inappropriate way. Clearly relations between these two individuals was not good, as both the Complainant and Ms. P had cause to make complaint about one another. The Complainant reported his observations to Mr. Byrne whilst Ms. P wrote a more formal complaint. The nett effect of these complaints was that only the Complainant’s day to day work was affected by a further diminution of what he perceived to be the work of the Service Officer. The Complainant was moved away from the post room and towards the Maintenance end of the services to be provided. At this point the Complainant felt that he had been stripped of his dignity. The Complainant had been involuntarily moved now for a second time whilst Ms. P had been assigned or at least retained the work normally associated with his Service Officer grade. These changes took place in and around October 2017. I do note that the Complainant continued to do the franking of post.

It is worth noting that in the course of this employment and in this period the Complainant had made complaint against two other colleagues Ms. CF and Ms. DM. These were addressed though did not necessarily yield the result that the Complainant might have wanted.

At the end of October 2017, the Complainant writes to Mr. DD in the HR department stating that he wants a meeting “regarding his treatment at B….. Street”. To some extent it seems that this communication was in reaction to the fact that the complaint made by Ms. P had just been made known to him. I am satisfied that this is the first point that the Employer’s HR department becomes aware that the Complainant herein has a Grievance or might have a Grievance though it is not until the 10th of November that the Complainant’s Grievance gets fleshed out by way of a short email wherein he states that that he is not allowed to deal with the public and that he is left overseeing Maintenance which is not part of the duties of the Services Officers. In consequence of this the Complainant feels degraded. There is no doubt that the genesis of this complaint goes back to January 2016 (1 year 10 months earlier).

It is important to note that running parallel with this process having been started by the Complainant the evidence shows that the complainant also started to look at the option of taking an early retirement package which is open to him by reason of his age

To explain the question of why there has been such an inordinate delay in bringing a complaint, the Complainant relied on a lack of knowledge and/or understanding of how to raise a complaint or grievance. I am satisfied from the evidence that the Complainant had had no trouble (for example in September of 2016) raising a complaint against a Ms. MD a manager he perceived to be harassing him in the workplace. I also note that the Complainant has historically engaged with both his Union a representative at that time as well as with the HR Division as well as the “Designated Person” chosen to investigate this complaint. I am also satisfied that the complainant was aware of the existence of the Dignity at Work policy and the Grievance procedures since this time. I am also satisfied that the Complainant had knowledge of the availability of the facilitated mediation process from this time. I note that the outcome of the process engaged in (concerning Ms. MD) did not result in a full-blown investigation and rested with the findings of the Designated Person. The Complainant I must find knew of this outcome (having been written to on the 28th of September 2016).

In the Complainant’s submission it states at paragraph 2.11 that the Complainant had made numerous attempts to appeal the decision to confine his work to the post room and that he had confirmed with Mr. Byrne that he proposed to work there only under protest. Having considered the evidence I can find no evidence that either submission is correct. I note in fact that the Complainant appeared to get on well enough with Mr. B before the 3rd of November 2017. He was in fact looking to Mr. Byrne to protect him from the overbearing authority that another supervisor inappropriately tried to assert over him – per his email of the 9th of September 2016. I also note in that same email the Complainant states “I perform other duties for the Manager other than Service Officer, so I have an understanding with John (Byrne) that he tells me what my duties are and nobody else.” Which tends to suggest that he has a reasonably close relationship with Mr. Byrne who has singled the Complainant out for extra or special duty over and above those normally associated with a Service Officer.

On balance therefore I have to find that the Employer including the immediate line Manager had no foreknowledge that the Complainant was so unhappy with the conduct of his Employer that he was considering terminating his employment by reason of that conduct.

This is borne out by DD’s email/letter dated the 14th of December 2017.

It is an inescapable fact that if there is an onus on a Complainant to be seen to exhaust internal procedures as far is reasonably practicable given the circumstances that pertain, before there can be an expectation that there is no alternative other than to resign.

The Respondent is adamant that the complainant had repeatedly consulted with his Union Representatives regarding issues he was having in the workplace and that as a workplace that has no difficulty with Union input there was never any difficulty with the complainant addressing any problem he might have had through the course of his employment. I have noted the various bits of correspondence which tend to show the Complainant was comfortable engaging with the Union.

The Respondent makes the case that there were no complaints from the Complainant concerning tasks being taken from him between his change of assignment in early January 2016 to November of 2017 a period of 1 year and 10 months. This was a period wherein the Complainant worked diligently. The Respondent is therefore making the case that any grievance he may have had regarding the diminution of his tasks was not a factor when he came to decide to terminate his own employment.

In any event I have noted that the Performance Management development system outlines many duties over and above the management of the public floor and that the Complainant worked alongside two or three other officers in rotation of the work. The reasons given by the Respondent witness for the Complainant’s move away from the floor was directly related to the number of complaints received against the Complainant whose manner can seemingly be brusque. The decision to place the Complainant inside the counter instead of outside was by way of a re-structuring and in no way involved a punishment or diminution of role or status. The Complainant had always worked the post room as part of his duties

On balance I am satisfied that the Complainant had plenty of opportunity to have had sight of and indeed to invoke the Grievance procedures and to insist on the observation of the dignity at work policy. I am also satisfied that the complainant had access to Union representative. This is relevant in Constructive Dismissal cases as per the seminal Employment Appeals Tribunal case UD 474/1981 Margot Conway -v-   Ulster Bank Limited Wherein the Tribunal stated:

“The Tribunal considers that the Appelant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appelant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”

As previously said by me, t is long settled therefore that an employee who has resigned his or position by reason of a Constructive Dismissal will generally be expected to have been seen to avoid taking this step by utilising internal grievance procedures.

On balance I cannot accept that there has been a fundamental and/or a repudiatory breach of the Employees Contract of Employment which would allow the Complainant to rely on the “Contract Test” which would allow the Complainant to terminate his employment by reason of the fundamental breach of the Contract of Employment by the Employer.

It is clear that the Complainant had, independently of any upheaval in the workplace, made enquiries as to his eligibility to seek early retirement. I do not accept that this was as a direct result of any perceived difficulties he might have been having in the workplace and even if it was, I consider DD’s letter/email of the 6th of December to be a clear and reasonable offer on the part of the Employer to delay any proposed early retirement and allow for the airing of Grievances:

“If the various issues I have discussed above are the main cause of your retirement perhaps a positive resolution of those matters may lead you to rethink your application to retire. If not, and you are still going ahead, I wish you all the best in your retirement…”

It is worth noting that the complainant by December 6th had indicated that he was not willing to engage with the complaint made by Ms. P as this had been delayed.

The Complainant opted not to come back to DD in HR and instead took the unusual step of writing directly to the Secretary General (Mr. JMcK) wherein he takes the opportunity to raise the issue of the diminution of his duties alongside some serious (and unsubstantiated) allegations of bullying and disharmony in the workplace. What the Complainant hoped to achieve by sending this letter is unclear though the Complainant does confirm his intention to retire in this letter. This letter was dated the 8th of December 2017.

As would be expected Mr. JMcK forwarded this complaint to the HR department and it came to be handled by DD who invited the Complainant to meet in respect of this letter. The Complainant does not meet with DD and proceeds to take up early retirement at the end of December 2017.

Having considered all of the evidence including the oral evidence and extensive documentation opened to me in granular detail, I am satisfied that the Employer’s conduct did not drive the Complainant to tender his resignation. The Complainant took up an early retirement option against a backdrop of being unhappy in the workplace, not through the fault of his employer, but by reason of his own inability to make allowances.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00019702-001 – The Complainant’s claim under the Unfair dismissals legislation has not been proven and it therefore fails.