Complainant

Respondent

Anonymised Parties

Manager

Care Provider

Act

Complaint Reference No.

Date of Receipt

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

CA-00026534-001

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026534-002

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00026534-003

26/02/2019

The Complainant was employed as a Manager by the Respondent from 4th April 2016 until his employment ended on 6th November 2018. The Respondent provides health and social care to vulnerable teenagers and adults.

Specific complaint CA-00026534-001 was withdrawn at the hearing.

The Complainant submits that pursuant to section 8 of the Unfair Dismissals Acts the Respondent unfairly dismissed the Complainant by way of constructive dismissal.

In support of his claim, the Complainant submits as follows:

The Complainant was employed by the Respondent as asupport worker and commenced his employment with the Respondent on 1 April 2016.

The Complainant performed the following tasks and responsibilities in his initial role:

·                     Preparing rosters for most units;

·                     Ensuring all shifts were covered;

·                     Calculating monthly hours for wages to be paid correctly;

·                     Processing staffs holiday requests;

·                     Attending weekly management meetings;

·                     Visiting clients in secure hospital units in the UK.

The Respondent failed to furnish the Complainant with an employee handbook, disciplinary procedure or grievance procedure at the commencement of his employment or thereafter.

The Complainant was paid a gross monthly salary of €3,164. This equated to a gross annual salary of €37,968. The Complainant was required to work 40 hours per week with overnights.

The Complainant was required to work at the Respondent’s residential care premises referred to as the AM House. The Complainant was also regularly required to work at the Respondent’s office premises.

The Complainant maintains that he was never the subject of any disciplinary or performance related complaint, investigation, finding or sanction; and performed exceptionally well in his employed, successfully passing all probationary periods; achieving a number of promotions; and having an impeccable attendance record, having never been out of work on sick leave.

In October 2017, the Complainant travelled with BC, Manager of the Respondent, to the UK to engage and liaise with a new client. During this trip, BC told the Complainant that he was being appointed to the role of joint team leader for the AM House. BC explained to the Complainant that the role was to be joint or split and that there would be no extra money involved for the moment, but that there would be additional responsibilities. The Complainant was delighted with his promotion to the post of joint team leader and began to assume additional responsibilities as such, including: making sure all weekly and monthly reports were completed; covering extra shifts during staff shortages; management of weekly petty cash; and dealing with client needs (education, health and wellbeing). Further, the Complainant was required to increase his working hours, ensuring that he worked every Monday, Wednesday and Friday in order to supervise all matters in the AM House. Although this did not suit the Complainant entirely as it limited his time off work, he was delighted with the promotion and accepted same immediately. Shortly thereafter, BC informed the Complainant that he was very happy with his performance and that, going forward, he would be the only team leader for the AM House. Thereafter, all staff were informed by management in team meetings that the Complainant was a team leader. The Complainant maintains that this amounted to a de facto promotion to the position of team leader.

In and around February 2018, the Respondent informed the Complainant that he would be promoted to an office job in the office itself in June 2018. The Respondent then furnished the Complainant with a company telephone and a company email address. Company telephones and email addresses had always only been provided to management staff of the Respondent. The Complainant was invited to, and began attending management meetings; a responsibility only afforded to management of the Respondent. Further, the Respondent added the Complainant to its management Whatsapp group, a communication group made up only of members of management. Thereafter, the Complainant began performing additional responsibilities, including: assessing monthly hours for wages; processing holiday requests; preparing rosters for most of the other houses; ensuring all houses had cover with staff; and taking calls from staff 7 days a week and dealing with any concerns. The Complainant maintains that this amounted to a de facto promotion to the position of manager.

In and around 1 May 2018, the relationship between BM   the owner of the Respondent company, and BC and anther manager JW suddenly and significantly deteriorated and broke down arising from allegations from BM that BC and JW were guilty of perpetrating financial irregularities within the Respondent organisation. BC and JW maintained that they were innocent of any such wrongdoing but were ultimately dismissed in entirely improper and unfair circumstances were they not afforded the benefit of any reasonable investigation or due process. The Complainant maintains that he had absolutely nothing to do with any such misconduct himself and had limited involvement with either BC or JW. However, arising from this breakdown, he was wrongly perceived as being in cahoots with BC and JW and subjected to a series of unreasonable conduct by the Respondent including: bullying; harassment; abuse; demotion; removal of duties; removal of equipment; reduction of working hours; non-payment of wages; and the Respondent’s refusal to address any of his complaints relating to same.

In or around the 1st May 2018, MM, support worker, telephoned the Complainant and began berating him, cursing at him and calling him a: “spineless bastard” for cutting his shifts. The Complainant explained to MM that he was only carrying out instructions from BM, owner of the Respondent, to do so. The Complainant stated that he would see what he could do. MM then accused the Complainant of working with BC to cut his shifts in an attempt to get rid of him. This was completely untrue and the Complainant was shocked, distressed and upset by MM’s conduct and allegations.

On 8 May 2018, BM telephoned the Complainant and asked him where he was. The Complainant stated that it was his day off. BM asked the Complainant to attend work to see him. The Complainant agreed that he would attend the office at 2:30pm that day. On attending the meeting, the first thing that BM asked the Complainant was: “Do you know that I am the boss?” The Complainant replied that he did. BM then loudly and aggressively shouted: “Do you know that I am the boss?!!” The Complainant again replied that he did and that he had worked for him for over two years. BM stated that he was taking the responsibility of completing rostering away from the Complainant and that he would be passing the responsibility to MM. BM stated that he had decided to do this as “2 or 3” people had complained to him that they were being unfairly rostered. BM did not state who these alleged people were or the nature of their complaints. The Complainant explained that he had he only put workers on the rosters on instructions from his own line manager and the company manager and that they approved them before the rosters were sent out. The Complainant showed BM texts from his phone that proved this. BM did not seem to care and confirmed that the rosters would be done by MM going forward. The Complainant then told BM about MM’s telephone call the previous week and the completely unacceptable conduct and baseless allegations to which he was subjected in these phone calls.

The Complainant maintains that this amounted to a complaint of bullying to the Respondent. BM completely ignored the Complainant’s complaint before asking him how much “extra” JW was paying him. BM did not outline or explain in any further detail what he was accusing the Complainant of. The Complainant was confused and distressed by this and stated that on 2 occasions he had received an extra €50 arising from receipts that he had given to the Respondent and that on two further occasions he had received a full shift payment for working in the office from 10am to 5pm due to a shortage in staff on those days. BM started to shaking his head and told the Complainant that: “those two clowns [JW and BC] are trying to set you up”, without explaining the allegation any further. This caused further distress and confusion to the Complainant.

The Complainant then asked BM whether he was still the team leader for the AM house. BM stated that he was not and that, in fact, he had never been a team leader at all. BM then took the Complainant’s company telephone and told him that he would not be needing it any more. BM stated that the Complainant should come back to him in a week and that he would have a better job for him as he did not want his talents to go to waste. BM stated that he was a “man of his word”, very approachable and that the Complainant could contact him at any time. The Complainant was highly distressed and upset by the events that had occurred in the meeting and maintains that BM, the owner of the Respondent itself, had ignored his complaint of bullying, demoted him, refused to recognise that he had ever performed a team lead or managerial role when he quite clearly had, removed tasks and responsibilities fundamental to his role, revoked his entitlement to company equipment and accused and/or insinuated that he was guilty of some vague class of wrongdoing in tandem with BC and JW without the benefit of any evidence, investigation, finding or process whatsoever.

Later, on 8 May 2018, the Respondent unilaterally and without warning changed the password for the Complainant’s work email, effectively blocking him out of his emails. The Complainant was again deeply distressed by this act and it confirmed to him that the Respondent, through the owner of the company itself, had demoted him and revoked a further entitlement to company equipment due to an allegation or insinuation that he was guilty of some vague class of wrongdoing in tandem with BC and JW without the benefit of any evidence, investigation, finding or process whatsoever.

Shortly thereafter the Complainant began receiving dozens of calls from work colleagues asking why the Respondent had removed his rostering role and why the Respondent had “sacked” him. The Complainant repeatedly told these staff that BM had taken his rostering task and given it to MM, but that he had not been sacked and had done nothing wrong to warrant being sacked. The colleagues told the Complainant that MM had informed them that he was now responsible for completing rostering and that the Complainant had been sacked. The Complainant was deeply distressed by these events and they further confirmed to him that the Respondent, through the owner of the company itself, had demoted him and revoked a further entitlement to company equipment due to an allegation or insinuation that he was guilty of some vague class of wrongdoing in tandem with BC and JW without the benefit of any evidence, investigation, finding or process whatsoever.

The Complainant contacted the office and told the HR Officer of the Respondent that he was going to attend the office to talk with BM as he was very upset by what had occurred. On attending the office, the Complainant complained to BM about MM’s conduct and asked why he was telling colleagues that he had been sacked. BM stated: “I can see that you’re angry”. The Complainant stated that he was not angry, that he was absolutely raging and that he had done absolutely nothing wrong apart from working hard for over 2 years. BM then told the Complainant to “keep your head down” for a month and that he would then sort something out for him. The Complainant was shocked that BM’s manner of addressing his complaints was to merely tell him to keep his head down for a month. This had a devastating effect on the Complainant’s trust and confidence in the Respondent and confirmed to him that the Respondent had no interest in treating him in a reasonable manner or addressing the serious grievances that he was raising.  

Shortly thereafter, it came to the Complainant’s attention that two colleagues were spreading malicious rumours about him being involved in wrongdoing within the Respondent. The two colleagues spread malicious rumours that the Complainant was involved with JW and BC in alleged wrongdoings within the Respondent and stated that money was used for gift vouchers from petty cash which the Complainant was supposed to have kept.

Upon discovering the existence of these allegations the Complainant immediately contacted BM and informed him of the existence of the malicious rumours that were being spread about him and the identity of the colleagues doing this. The Complainant complained about being subjected to such malicious rumour and asked BM to address the issue by talking with the colleagues. BM failed to do so and the Complainant repeatedly re-raised the complaint with him. It remained unaddressed. This forced the Complainant to send out an email to staff confirming that he had nothing to do with any wrongdoing. The Complainant maintains that BM deliberately failed to address these complaints as he wanted the Complainant to resign. This had a further devastating effect on the Complainant’s trust and confidence in the Respondent and further confirmed to him that the Respondent had no interest in treating him in a reasonable manner or addressing the serious grievances that he was raising.

Over the following weeks, the Complainant repeatedly tried to contact BM regarding the aforementioned complaints, but BM repeatedly refused to answer or return the Complainant’s calls. On one occasion, the Complainant attempted to phone BM 6 times in a row; however, he refused to answer or return the calls. On one occasion, the Complainant used his wife’s phone to call BM. Surprisingly, BM answered this call despite having immediately prior to this not answered a call from the Complainant’s number. When BM heard the Complainant’s voice, he started stuttering and saying that he could not talk as he was busy and would return the call later. BM then hung up the phone. BM failed to return the call. The Complainant could not contact BM to progress his complaints and BM made no attempts whatsoever to do so himself.

The aforementioned conduct had a severe effect on the Complainant’s and his wife’s health. On 8 May 2018, the Complainant commenced a period of certified sick leave. The Complainant was to remain on sick leave until his dismissal. On 24 May2018,he attended his doctor and was diagnosed with stress and anxiety.

In June 2018, the Respondent dismissed both BC and JW in a highly improper manner where they were not afforded either the benefit of a reasonable investigation or due process. The Complainant raised this in a meeting with BM and also stated that he was now also being punished as he had worked under JW and BC. BM stated that this was not the case.

By email dated 29 June 2018, the Complainant wrote to BM stating that when they had met on 21 June 2018, BM had agreed that the Complainant would have 10 shifts from the July 2018 roster going forward, but that it was now 29 June 2018 and he had still not received the roster for July 2019. The Complainant stated that it had also been agreed that he was to be paid for 11 shifts in June 2018, but had only been paid for 5 shifts leaving him unable to discharge his own bills. The Complainant stated that he was being treated in an unjustifiable way by the Respondent and that he wanted to get it resolved as soon as possible. The Complainant stated that he had tried to call BM 11 times over the previous days to discuss his situation, but that BM had not answered any of these calls. The Complainant maintains that, from May 2018 onwards, up until his resignation, the Respondent continued to pay him late and in insufficient amounts.

By email dated 2 July 2018, the Complainant wrote to BM stating that BM had told him that he was starting to wind down the AM House and would only be giving the Complainant 7 shifts and not 10 going forward, but that the other 3 shifts would be sourced from other clients to make up the 10 shifts. The Complainant stated it was now 2 July 2018 and that he had not received any rosters and was unable to work out when he was rostered to work. The Complainant stated this was affecting his ability to visit his grandson in Scotland who was unwell. The Complainant stated that the way he was being treated by the Respondent was unfair and unjustified and that he was being punished for some perceived wrongdoing that he was not guilty of. The Complainant stated that his wife’s health had been affected and that he was now due to attend his own doctor.

By email dated 27 August 2018, the Complainant wrote to IH, a manager in the Respondent organisation. Therein, the Complainant enquired into whether the roster would be out soon. The Complainant stated that he had telephoned BM about it but that he had said he was busy and would call back, which he had not done for a week. The Complainant also asked that his wage and wage slip be correct as pay was due the coming Friday. In response, IH stated that the rosters had been sent out “as there was no contact from you”, and that, as regards the wage and pay slips “this is not within my remit”. Further, IH asked the Complainant to meet with him and BM on 29 August 2018 about an unspecified manner.

By email dated 29 August 2018 sent at 16:16, the Complainant wrote to BM, stating that he had attended the office to meet with him and IH as requested and attempted to call BM unsuccessfully on a number of occasions and that IH had informed him the meeting would now not happen until 30 August 2018. The Complainant stated that he had been told by IH that the rosters for that month had already been issued without his knowledge and that he had not been given hours on any of the rosters as the Respondent had allegedly not heard from him that month. The Complainant took issue with this and stated that he had contacted BM himself on 20 August 2018. The Complainant stated that he felt that BM was avoiding him for some reason and that he had been a loyal employee for over two years who should not be treated in such an unprofessional manner. The Complainant stated that if IH was to attend the official meeting the following day, he should also be able to bring someone as it would be unfair for him to be by himself and alone. The Complainant stated that the way he had been treated was unprofessional and that he wanted to resolve the nightmare that had been brought to him and his family and wanted to do his job without bitterness. The Complainant stated that he had nothing to do with JW or BC in any wrongdoing. The Complainant stated that BM had continued to avoid him and not reply to his communications and asked for the courtesy that his communications be responded to. The Complainant stated that the way the Respondent had treated him had affected his health.

On 29 August at 18:33, IH emailed the Complainant stating that he had tried to call the Complainant “multiple times” and that the meeting had been rescheduled to 30 August 2018. In response, the Complainant stated that he had not received any missed calls whatsoever and enquired into what the purpose of the meeting was.

On 30 August 2018, the Complainant attended the meeting with BM and IH. This meeting was only called after the Complainant had sent an email to BM outlining that he was unprofessional and unapproachable by the way he had treated the Complainant. At the meeting, BM took exception to this email and stated that he had never received such an email from an employee before and it was all lies. The Complainant stated that it was 100% true as he was not in a habit of lying.

By email dated 30 September 2018, the Complainant wrote to BM stating that the reason why he was on sick leave was due to the treatment to which he had been subjected in work and that same had had an effect on his mental health. The Complainant stated that he had previously been paid while on sick leave, but following his email raising complaints with the manner in which he had been treated, his paid sick leave had stopped. The Complainant stated that for months he had not been paid on time and that he had been very reasonable and accommodating to the Respondent in relation to this to date. The Complainant stated that that month he had not been paid nor received any money from social welfare to pay his bills and that he had sought to utilise his accrued annual leave entitlement to assist him but that this was also not paid on time. The Complainant stated that he had been told to contact BM about this, but that he had refused to answer the phone. The Complainant stated that he had absolutely no money to survive the week and had been forced to attend BM’s house to see him about his unpaid wages, but had been told by BM to get off his property. The Complainant stated that the Respondent had put him and his family through “hell” and asked for an explanation as to what he had done wrong. The Complainant stated that the Respondent had a “vendetta”against him without any cause and that he would be referring the matter to the WRC.

By letter dated 30 October 2018, the Complainant wrote to BM stating:

‘I am writing to inform you that I am resigning from my position of support work with immediate effect. Please accept this as my formal letter of resignation and a termination of our contract. I feel that I am left with no choice but to resign in light of my recent experiences regarding a fundamental breach of contract and a breach of trust and confidence.’

The Respondent failed, refused or neglected to respond to the Complainant’s resignation.

By email dated 2 February 2019, the Complainant wrote to BM stating that he had been bullied, victimised and subjected to a character assassination in work which had caused him extensive mental health problems and led to his constructive dismissal. The Complainant stated that BM had never been approachable during this time or answered or returned any of his calls or addressed any of his complaints of being bullied in work. The Complainant stated that BM had also refused to inform employees that he was innocent of any wrongdoing in the Respondent. The Complainant asked BM to reply within 7 days, failing which he would proceed with legal action.

The Respondent failed, refused or neglected to respond to the Complainant’s email.

By letter dated 21 March 2019, the Complainant’s solicitors wrote to BM stating that the Respondent had subjected the Complainant to a constructive dismissal by virtue of the manner in which it had treated him, particularly following the dismissal of JW and BC. The Complainant’s Solicitors stated that the Respondent had bullied and harassed the Complainant and failed to make proper payments to him, causing both him and his wife to become ill. The Complainant’s Solicitors stated that the Respondent had failed to take calls from the Complainant or address any of his complaints. The Complainant’s solicitors stated that the Complainant had no choice but to resign his employment.

The Respondent failed, refused or neglected to respond to this letter or the allegations set out therein.

The Complainant asserts that he was not treated in a sympathetic and supportive manner while on sick leave. Further, complaints of misconduct against a persons of high rank within the organisation went utterly unaddressed, uninvestigated and unresolved by the Respondent.

The Complainant relied on the following precedents in support of his claim: An Employer v. A Worker (Mr O)(No. 2) [EED0410], Kennedy v. Foxfield Inns Ltd [1995] ELR 216, Richardson v. Avant Shipping UD 145/07, Allen v. Independent Newspapers (Ireland) Limited 2002 ELR 84, and Monaghan v. Sherry Brothers [2003] ELR 293.

It is respectfully submitted that in the case at hand, applying either the contract or reasonableness tests, and applying the above mentioned legal principles which are all applicable to this case, the Complainant was constructively unfairly dismissed by the Respondent by virtue of the fact that the Respondent’s conduct was so unreasonable as to leave the Complainant with no reasonable option other than to resign his employment and that such unreasonable conduct also amounted to a repudiatory breach of the contract of employment, such that the Claimant was entitled to treat the contract as terminated and himself dismissed.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing.

As the Complainant is claiming constructive dismissal, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““dismissal”, in relation to an employee, means—

(b) 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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “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 other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…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.”

According to the Supreme Court in Berber -v- Dunnes Stores: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.

Based on the Complainant’s uncontested evidence, I find the Respondent’s attitude towards the Complainant changed significantly as a result of the difficulties which arose between the Respondent and JW and BC in early May 2018.  

Under the two-pronged test for Constructive Dismissal provided in Western Excavating (ECC) Ltd -v- Sharp, I find that the Respondent acted completely unreasonably when instead of addressing the Complainant’s concerns about the way he had been treated by his colleague MM, the Respondent effectively demoted the Complainant by removing him from the role of team leader and taking away his company phone without affording the Complainant basic fair procedures including making the Complainant aware of the wrongdoing of which he was accused; instigating a fair and proper investigation and, if appropriate, disciplinary procedure and affording the Complainant the right of input at every stage of the process and the opportunity to appeal the outcome.

Based on the uncontested evidence of the Complainant, it is clear that the Respondent did not act reasonably when he failed to address the Complainant’s concerns that colleagues were spreading damaging rumours about him and that it was left to the Complainant himself to address this matter with his colleagues without any support from the Respondent.

The Respondent’s continuing failure to respond to the Complainant’s telephone calls in May and June 2018 did not demonstrate the behaviour of a reasonable employer who was concerned about the welfare of his employees.

I find that, based on the uncontested evidence of the Complainant, the Respondent’s failure to furnish the Complainant with an employee handbook and a disciplinary and grievance procedure at the outset of his employment, meant that the Complainant was effectively prevented from pursing a resolution to the issues which arose during the course of his employment with the Respondent.

Furthermore, I find that the repeated failure of the Respondent to deal with the Complainant’s issues about rostering and the allocation of shifts was entirely unreasonable.

In the absence of an employee handbook, and based on the fact that he had received payment for his initial period of sick leave, I am of the view that the Complainant was entitled to believe that he had a contractual entitlement to payment while absent on sick leave. Accordingly, I find that the decision of the Respondent in September 2018 to cease paying the Complainant while he was on sick leave was a breach of the implied terms of his contract.

Based on the uncontested evidence adduced, I find that the Complainant had no option but to terminate his employment with the Respondent as a result of the Respondent’s behaviour. I find, therefore, that the Complainant was constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977.

Mitigation of Loss

Following the ending of his employment, the Complainant was out of work for two weeks. Whilst he managed to secure alternative employment, he is suffering an ongoing annual loss of €5,526.

I find that this complaint is well founded and I order the Respondent to pay the Complainant redress of €12,500.

The Complainant submits as follows:

Section 11 of the Protected Disclosures Act 2014 amends the Unfair Dismissals Acts to protect employees from being penalised as a result of having made a protected disclosure by making dismissal for having made a protected disclosure an automatically unfair dismissal entitling an employee to relief under the Act.

In the case at hand, the Complainant made disclosures to his employer in June 2018 about the inappropriate and illegal manner in which the Respondent had dismissed BC and JW. The Complainant maintains that these dismissals were in breach of the legal obligation placed on the Respondent by virtue of the Unfair Dismissals Acts. The Complainant maintains that the above disclosure come within the definition of section 5(3)(b) of the 2014 Act, that being that the disclosures related to: a failure to comply with a legal obligation regarding compliance with the Unfair Dismissals Acts. The Complainant maintains that he made the disclosures to his employer and that he had a reasonable belief that the disclosures tended to show wrongdoing and that the issue came to his attention in connection with his employment. The Complainant maintains that he has satisfied the requirements of the 2014 Act and that the disclosures amounted to a protected disclosures for the purposes of the 2014 Act and that, as such, he is protected from penalisation in the form of dismissal resulting wholly or mainly from such a disclosure under the Unfair Dismissal Acts.

In Dougan & Clark v Lifeline Ambulances Ltd (Unreported, Circuit Court, Comerford J), Judge Comerford considered what circumstances would amount to substantial grounds for a Court to conclude that a dismissal has resulted wholly or mainly from the making of a protected disclosure. Therein, Comerford J concluded that such factors would necessarily include: the temporal proximity between the making of the protected disclosure and the dismissal; whether any animosity arose between the parties as a result of the protected disclosure prior the dismissal; whether fair procedures and natural justice were afforded to the Complainant in the dismissal procedures adopted by the Respondent; whether any such apparent fair procedures and natural justice were real or merely window dressing; and whether the Complainant was treated in a less favourable manner to comparative employees who had not made protected disclosures. Comerford J concluded that, on the facts of the case, particularly the fact that there was a temporal proximity of 2 and a half months’, that the dismissal had resulted wholly or mainly from the protected disclosure.

In the case at hand, there is a striking temporal proximity between the disclosure and the commencement of the Respondent’s adverse approach to the Complainant, culminating in his constructive dismissal. Furthermore, there were clear signs of hostility between the Complainant and the Respondent immediately following the making of the disclosure. The Respondent failed to afford the Complainant even the slightest scintilla of fair procedures or due process in the grievance procedures that it afforded to the Complainant in relation to his complaints. Finally, the Complainant was treated less favourably than hypothetical comparators who might not have made a disclosure, in that he was not afforded any of the procedural grievance rights which are typically afforded to employees. The Complainant maintains that the facts of the case satisfy every single factor to be considered in determining whether his dismissal resulted wholly or mainly from his disclosure as identified by Comerford J in the Dougan & Clarkdecision. As such, the Complainant respectfully submits that the Respondent penalised him for having exercised his rights and making a disclosure pursuant to the Protected Disclosure Act, 2014.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing.

It is well-established, and underpinned by jurisprudence, that a Complainant cannot recover more than one amount of compensation in relation to matters arising from the same set of facts.

According to the Complainant’s uncontested evidence, the sequence of events that culminated in the Complainant’s decision to terminate his employment with the Respondent commenced in early May 2018.   The Complainant’s alleged protected disclosure did not occur until June 2018.  

I am of the view that the Complainant’s referral under the Protect Disclosures Act, 2014 is grounded on a sub-set (commencing in June 2018) of the same set of facts upon which he relied to ground his referral under the Unfair Dismissals Act.

I find, therefore, that this complaint is not well founded.

I find that this complaint is not well founded.

Constructive dismissal – protected disclosure

Complainant

Respondent

Parties

David McCulloch

Intensive Community Programmes Limited

Complainant

Respondent

Anonymised Parties

Manager

Care Provider

Representatives

Sean Ormonde & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00026534-001

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00026534-002

26/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00026534-003

26/02/2019

The Complainant was employed as a Manager by the Respondent from 4th April 2016 until his employment ended on 6th November 2018. The Respondent provides health and social care to vulnerable teenagers and adults.

Specific complaint CA-00026534-001 was withdrawn at the hearing.

The Complainant submits that pursuant to section 8 of the Unfair Dismissals Acts the Respondent unfairly dismissed the Complainant by way of constructive dismissal.

In support of his claim, the Complainant submits as follows:

The Complainant was employed by the Respondent as asupport worker and commenced his employment with the Respondent on 1 April 2016.

The Complainant performed the following tasks and responsibilities in his initial role:

·                     Preparing rosters for most units;

·                     Ensuring all shifts were covered;

·                     Calculating monthly hours for wages to be paid correctly;

·                     Processing staffs holiday requests;

·                     Attending weekly management meetings;

·                     Visiting clients in secure hospital units in the UK.

The Respondent failed to furnish the Complainant with an employee handbook, disciplinary procedure or grievance procedure at the commencement of his employment or thereafter.

The Complainant was paid a gross monthly salary of €3,164. This equated to a gross annual salary of €37,968. The Complainant was required to work 40 hours per week with overnights.

The Complainant was required to work at the Respondent’s residential care premises referred to as the AM House. The Complainant was also regularly required to work at the Respondent’s office premises.

The Complainant maintains that he was never the subject of any disciplinary or performance related complaint, investigation, finding or sanction; and performed exceptionally well in his employed, successfully passing all probationary periods; achieving a number of promotions; and having an impeccable attendance record, having never been out of work on sick leave.

In October 2017, the Complainant travelled with BC, Manager of the Respondent, to the UK to engage and liaise with a new client. During this trip, BC told the Complainant that he was being appointed to the role of joint team leader for the AM House. BC explained to the Complainant that the role was to be joint or split and that there would be no extra money involved for the moment, but that there would be additional responsibilities. The Complainant was delighted with his promotion to the post of joint team leader and began to assume additional responsibilities as such, including: making sure all weekly and monthly reports were completed; covering extra shifts during staff shortages; management of weekly petty cash; and dealing with client needs (education, health and wellbeing). Further, the Complainant was required to increase his working hours, ensuring that he worked every Monday, Wednesday and Friday in order to supervise all matters in the AM House. Although this did not suit the Complainant entirely as it limited his time off work, he was delighted with the promotion and accepted same immediately. Shortly thereafter, BC informed the Complainant that he was very happy with his performance and that, going forward, he would be the only team leader for the AM House. Thereafter, all staff were informed by management in team meetings that the Complainant was a team leader. The Complainant maintains that this amounted to a de facto promotion to the position of team leader.

In and around February 2018, the Respondent informed the Complainant that he would be promoted to an office job in the office itself in June 2018. The Respondent then furnished the Complainant with a company telephone and a company email address. Company telephones and email addresses had always only been provided to management staff of the Respondent. The Complainant was invited to, and began attending management meetings; a responsibility only afforded to management of the Respondent. Further, the Respondent added the Complainant to its management Whatsapp group, a communication group made up only of members of management. Thereafter, the Complainant began performing additional responsibilities, including: assessing monthly hours for wages; processing holiday requests; preparing rosters for most of the other houses; ensuring all houses had cover with staff; and taking calls from staff 7 days a week and dealing with any concerns. The Complainant maintains that this amounted to a de facto promotion to the position of manager.

In and around 1 May 2018, the relationship between BM   the owner of the Respondent company, and BC and anther manager JW suddenly and significantly deteriorated and broke down arising from allegations from BM that BC and JW were guilty of perpetrating financial irregularities within the Respondent organisation. BC and JW maintained that they were innocent of any such wrongdoing but were ultimately dismissed in entirely improper and unfair circumstances were they not afforded the benefit of any reasonable investigation or due process. The Complainant maintains that he had absolutely nothing to do with any such misconduct himself and had limited involvement with either BC or JW. However, arising from this breakdown, he was wrongly perceived as being in cahoots with BC and JW and subjected to a series of unreasonable conduct by the Respondent including: bullying; harassment; abuse; demotion; removal of duties; removal of equipment; reduction of working hours; non-payment of wages; and the Respondent’s refusal to address any of his complaints relating to same.

In or around the 1st May 2018, MM, support worker, telephoned the Complainant and began berating him, cursing at him and calling him a: “spineless bastard” for cutting his shifts. The Complainant explained to MM that he was only carrying out instructions from BM, owner of the Respondent, to do so. The Complainant stated that he would see what he could do. MM then accused the Complainant of working with BC to cut his shifts in an attempt to get rid of him. This was completely untrue and the Complainant was shocked, distressed and upset by MM’s conduct and allegations.

On 8 May 2018, BM telephoned the Complainant and asked him where he was. The Complainant stated that it was his day off. BM asked the Complainant to attend work to see him. The Complainant agreed that he would attend the office at 2:30pm that day. On attending the meeting, the first thing that BM asked the Complainant was: “Do you know that I am the boss?” The Complainant replied that he did. BM then loudly and aggressively shouted: “Do you know that I am the boss?!!” The Complainant again replied that he did and that he had worked for him for over two years. BM stated that he was taking the responsibility of completing rostering away from the Complainant and that he would be passing the responsibility to MM. BM stated that he had decided to do this as “2 or 3” people had complained to him that they were being unfairly rostered. BM did not state who these alleged people were or the nature of their complaints. The Complainant explained that he had he only put workers on the rosters on instructions from his own line manager and the company manager and that they approved them before the rosters were sent out. The Complainant showed BM texts from his phone that proved this. BM did not seem to care and confirmed that the rosters would be done by MM going forward. The Complainant then told BM about MM’s telephone call the previous week and the completely unacceptable conduct and baseless allegations to which he was subjected in these phone calls.

The Complainant maintains that this amounted to a complaint of bullying to the Respondent. BM completely ignored the Complainant’s complaint before asking him how much “extra” JW was paying him. BM did not outline or explain in any further detail what he was accusing the Complainant of. The Complainant was confused and distressed by this and stated that on 2 occasions he had received an extra €50 arising from receipts that he had given to the Respondent and that on two further occasions he had received a full shift payment for working in the office from 10am to 5pm due to a shortage in staff on those days. BM started to shaking his head and told the Complainant that: “those two clowns [JW and BC] are trying to set you up”, without explaining the allegation any further. This caused further distress and confusion to the Complainant.

The Complainant then asked BM whether he was still the team leader for the AM house. BM stated that he was not and that, in fact, he had never been a team leader at all. BM then took the Complainant’s company telephone and told him that he would not be needing it any more. BM stated that the Complainant should come back to him in a week and that he would have a better job for him as he did not want his talents to go to waste. BM stated that he was a “man of his word”, very approachable and that the Complainant could contact him at any time. The Complainant was highly distressed and upset by the events that had occurred in the meeting and maintains that BM, the owner of the Respondent itself, had ignored his complaint of bullying, demoted him, refused to recognise that he had ever performed a team lead or managerial role when he quite clearly had, removed tasks and responsibilities fundamental to his role, revoked his entitlement to company equipment and accused and/or insinuated that he was guilty of some vague class of wrongdoing in tandem with BC and JW without the benefit of any evidence, investigation, finding or process whatsoever.

Later, on 8 May 2018, the Respondent unilaterally and without warning changed the password for the Complainant’s work email, effectively blocking him out of his emails. The Complainant was again deeply distressed by this act and it confirmed to him that the Respondent, through the owner of the company itself, had demoted him and revoked a further entitlement to company equipment due to an allegation or insinuation that he was guilty of some vague class of wrongdoing in tandem with BC and JW without the benefit of any evidence, investigation, finding or process whatsoever.

Shortly thereafter the Complainant began receiving dozens of calls from work colleagues asking why the Respondent had removed his rostering role and why the Respondent had “sacked” him. The Complainant repeatedly told these staff that BM had taken his rostering task and given it to MM, but that he had not been sacked and had done nothing wrong to warrant being sacked. The colleagues told the Complainant that MM had informed them that he was now responsible for completing rostering and that the Complainant had been sacked. The Complainant was deeply distressed by these events and they further confirmed to him that the Respondent, through the owner of the company itself, had demoted him and revoked a further entitlement to company equipment due to an allegation or insinuation that he was guilty of some vague class of wrongdoing in tandem with BC and JW without the benefit of any evidence, investigation, finding or process whatsoever.

The Complainant contacted the office and told the HR Officer of the Respondent that he was going to attend the office to talk with BM as he was very upset by what had occurred. On attending the office, the Complainant complained to BM about MM’s conduct and asked why he was telling colleagues that he had been sacked. BM stated: “I can see that you’re angry”. The Complainant stated that he was not angry, that he was absolutely raging and that he had done absolutely nothing wrong apart from working hard for over 2 years. BM then told the Complainant to “keep your head down” for a month and that he would then sort something out for him. The Complainant was shocked that BM’s manner of addressing his complaints was to merely tell him to keep his head down for a month. This had a devastating effect on the Complainant’s trust and confidence in the Respondent and confirmed to him that the Respondent had no interest in treating him in a reasonable manner or addressing the serious grievances that he was raising.  

Shortly thereafter, it came to the Complainant’s attention that two colleagues were spreading malicious rumours about him being involved in wrongdoing within the Respondent. The two colleagues spread malicious rumours that the Complainant was involved with JW and BC in alleged wrongdoings within the Respondent and stated that money was used for gift vouchers from petty cash which the Complainant was supposed to have kept.

Upon discovering the existence of these allegations the Complainant immediately contacted BM and informed him of the existence of the malicious rumours that were being spread about him and the identity of the colleagues doing this. The Complainant complained about being subjected to such malicious rumour and asked BM to address the issue by talking with the colleagues. BM failed to do so and the Complainant repeatedly re-raised the complaint with him. It remained unaddressed. This forced the Complainant to send out an email to staff confirming that he had nothing to do with any wrongdoing. The Complainant maintains that BM deliberately failed to address these complaints as he wanted the Complainant to resign. This had a further devastating effect on the Complainant’s trust and confidence in the Respondent and further confirmed to him that the Respondent had no interest in treating him in a reasonable manner or addressing the serious grievances that he was raising.

Over the following weeks, the Complainant repeatedly tried to contact BM regarding the aforementioned complaints, but BM repeatedly refused to answer or return the Complainant’s calls. On one occasion, the Complainant attempted to phone BM 6 times in a row; however, he refused to answer or return the calls. On one occasion, the Complainant used his wife’s phone to call BM. Surprisingly, BM answered this call despite having immediately prior to this not answered a call from the Complainant’s number. When BM heard the Complainant’s voice, he started stuttering and saying that he could not talk as he was busy and would return the call later. BM then hung up the phone. BM failed to return the call. The Complainant could not contact BM to progress his complaints and BM made no attempts whatsoever to do so himself.

The aforementioned conduct had a severe effect on the Complainant’s and his wife’s health. On 8 May 2018, the Complainant commenced a period of certified sick leave. The Complainant was to remain on sick leave until his dismissal. On 24 May2018,he attended his doctor and was diagnosed with stress and anxiety.

In June 2018, the Respondent dismissed both BC and JW in a highly improper manner where they were not afforded either the benefit of a reasonable investigation or due process. The Complainant raised this in a meeting with BM and also stated that he was now also being punished as he had worked under JW and BC. BM stated that this was not the case.

By email dated 29 June 2018, the Complainant wrote to BM stating that when they had met on 21 June 2018, BM had agreed that the Complainant would have 10 shifts from the July 2018 roster going forward, but that it was now 29 June 2018 and he had still not received the roster for July 2019. The Complainant stated that it had also been agreed that he was to be paid for 11 shifts in June 2018, but had only been paid for 5 shifts leaving him unable to discharge his own bills. The Complainant stated that he was being treated in an unjustifiable way by the Respondent and that he wanted to get it resolved as soon as possible. The Complainant stated that he had tried to call BM 11 times over the previous days to discuss his situation, but that BM had not answered any of these calls. The Complainant maintains that, from May 2018 onwards, up until his resignation, the Respondent continued to pay him late and in insufficient amounts.

By email dated 2 July 2018, the Complainant wrote to BM stating that BM had told him that he was starting to wind down the AM House and would only be giving the Complainant 7 shifts and not 10 going forward, but that the other 3 shifts would be sourced from other clients to make up the 10 shifts. The Complainant stated it was now 2 July 2018 and that he had not received any rosters and was unable to work out when he was rostered to work. The Complainant stated this was affecting his ability to visit his grandson in Scotland who was unwell. The Complainant stated that the way he was being treated by the Respondent was unfair and unjustified and that he was being punished for some perceived wrongdoing that he was not guilty of. The Complainant stated that his wife’s health had been affected and that he was now due to attend his own doctor.

By email dated 27 August 2018, the Complainant wrote to IH, a manager in the Respondent organisation. Therein, the Complainant enquired into whether the roster would be out soon. The Complainant stated that he had telephoned BM about it but that he had said he was busy and would call back, which he had not done for a week. The Complainant also asked that his wage and wage slip be correct as pay was due the coming Friday. In response, IH stated that the rosters had been sent out “as there was no contact from you”, and that, as regards the wage and pay slips “this is not within my remit”. Further, IH asked the Complainant to meet with him and BM on 29 August 2018 about an unspecified manner.

By email dated 29 August 2018 sent at 16:16, the Complainant wrote to BM, stating that he had attended the office to meet with him and IH as requested and attempted to call BM unsuccessfully on a number of occasions and that IH had informed him the meeting would now not happen until 30 August 2018. The Complainant stated that he had been told by IH that the rosters for that month had already been issued without his knowledge and that he had not been given hours on any of the rosters as the Respondent had allegedly not heard from him that month. The Complainant took issue with this and stated that he had contacted BM himself on 20 August 2018. The Complainant stated that he felt that BM was avoiding him for some reason and that he had been a loyal employee for over two years who should not be treated in such an unprofessional manner. The Complainant stated that if IH was to attend the official meeting the following day, he should also be able to bring someone as it would be unfair for him to be by himself and alone. The Complainant stated that the way he had been treated was unprofessional and that he wanted to resolve the nightmare that had been brought to him and his family and wanted to do his job without bitterness. The Complainant stated that he had nothing to do with JW or BC in any wrongdoing. The Complainant stated that BM had continued to avoid him and not reply to his communications and asked for the courtesy that his communications be responded to. The Complainant stated that the way the Respondent had treated him had affected his health.

On 29 August at 18:33, IH emailed the Complainant stating that he had tried to call the Complainant “multiple times” and that the meeting had been rescheduled to 30 August 2018. In response, the Complainant stated that he had not received any missed calls whatsoever and enquired into what the purpose of the meeting was.

On 30 August 2018, the Complainant attended the meeting with BM and IH. This meeting was only called after the Complainant had sent an email to BM outlining that he was unprofessional and unapproachable by the way he had treated the Complainant. At the meeting, BM took exception to this email and stated that he had never received such an email from an employee before and it was all lies. The Complainant stated that it was 100% true as he was not in a habit of lying.

By email dated 30 September 2018, the Complainant wrote to BM stating that the reason why he was on sick leave was due to the treatment to which he had been subjected in work and that same had had an effect on his mental health. The Complainant stated that he had previously been paid while on sick leave, but following his email raising complaints with the manner in which he had been treated, his paid sick leave had stopped. The Complainant stated that for months he had not been paid on time and that he had been very reasonable and accommodating to the Respondent in relation to this to date. The Complainant stated that that month he had not been paid nor received any money from social welfare to pay his bills and that he had sought to utilise his accrued annual leave entitlement to assist him but that this was also not paid on time. The Complainant stated that he had been told to contact BM about this, but that he had refused to answer the phone. The Complainant stated that he had absolutely no money to survive the week and had been forced to attend BM’s house to see him about his unpaid wages, but had been told by BM to get off his property. The Complainant stated that the Respondent had put him and his family through “hell” and asked for an explanation as to what he had done wrong. The Complainant stated that the Respondent had a “vendetta”against him without any cause and that he would be referring the matter to the WRC.

By letter dated 30 October 2018, the Complainant wrote to BM stating:

‘I am writing to inform you that I am resigning from my position of support work with immediate effect. Please accept this as my formal letter of resignation and a termination of our contract. I feel that I am left with no choice but to resign in light of my recent experiences regarding a fundamental breach of contract and a breach of trust and confidence.’

The Respondent failed, refused or neglected to respond to the Complainant’s resignation.

By email dated 2 February 2019, the Complainant wrote to BM stating that he had been bullied, victimised and subjected to a character assassination in work which had caused him extensive mental health problems and led to his constructive dismissal. The Complainant stated that BM had never been approachable during this time or answered or returned any of his calls or addressed any of his complaints of being bullied in work. The Complainant stated that BM had also refused to inform employees that he was innocent of any wrongdoing in the Respondent. The Complainant asked BM to reply within 7 days, failing which he would proceed with legal action.

The Respondent failed, refused or neglected to respond to the Complainant’s email.

By letter dated 21 March 2019, the Complainant’s solicitors wrote to BM stating that the Respondent had subjected the Complainant to a constructive dismissal by virtue of the manner in which it had treated him, particularly following the dismissal of JW and BC. The Complainant’s Solicitors stated that the Respondent had bullied and harassed the Complainant and failed to make proper payments to him, causing both him and his wife to become ill. The Complainant’s Solicitors stated that the Respondent had failed to take calls from the Complainant or address any of his complaints. The Complainant’s solicitors stated that the Complainant had no choice but to resign his employment.

The Respondent failed, refused or neglected to respond to this letter or the allegations set out therein.

The Complainant asserts that he was not treated in a sympathetic and supportive manner while on sick leave. Further, complaints of misconduct against a persons of high rank within the organisation went utterly unaddressed, uninvestigated and unresolved by the Respondent.

The Complainant relied on the following precedents in support of his claim: An Employer v. A Worker (Mr O)(No. 2) [EED0410], Kennedy v. Foxfield Inns Ltd [1995] ELR 216, Richardson v. Avant Shipping UD 145/07, Allen v. Independent Newspapers (Ireland) Limited 2002 ELR 84, and Monaghan v. Sherry Brothers [2003] ELR 293.

It is respectfully submitted that in the case at hand, applying either the contract or reasonableness tests, and applying the above mentioned legal principles which are all applicable to this case, the Complainant was constructively unfairly dismissed by the Respondent by virtue of the fact that the Respondent’s conduct was so unreasonable as to leave the Complainant with no reasonable option other than to resign his employment and that such unreasonable conduct also amounted to a repudiatory breach of the contract of employment, such that the Claimant was entitled to treat the contract as terminated and himself dismissed.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing.

As the Complainant is claiming constructive dismissal, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““dismissal”, in relation to an employee, means—

(b) 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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “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 other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…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.”

According to the Supreme Court in Berber -v- Dunnes Stores: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.

Based on the Complainant’s uncontested evidence, I find the Respondent’s attitude towards the Complainant changed significantly as a result of the difficulties which arose between the Respondent and JW and BC in early May 2018.  

Under the two-pronged test for Constructive Dismissal provided in Western Excavating (ECC) Ltd -v- Sharp, I find that the Respondent acted completely unreasonably when instead of addressing the Complainant’s concerns about the way he had been treated by his colleague MM, the Respondent effectively demoted the Complainant by removing him from the role of team leader and taking away his company phone without affording the Complainant basic fair procedures including making the Complainant aware of the wrongdoing of which he was accused; instigating a fair and proper investigation and, if appropriate, disciplinary procedure and affording the Complainant the right of input at every stage of the process and the opportunity to appeal the outcome.

Based on the uncontested evidence of the Complainant, it is clear that the Respondent did not act reasonably when he failed to address the Complainant’s concerns that colleagues were spreading damaging rumours about him and that it was left to the Complainant himself to address this matter with his colleagues without any support from the Respondent.

The Respondent’s continuing failure to respond to the Complainant’s telephone calls in May and June 2018 did not demonstrate the behaviour of a reasonable employer who was concerned about the welfare of his employees.

I find that, based on the uncontested evidence of the Complainant, the Respondent’s failure to furnish the Complainant with an employee handbook and a disciplinary and grievance procedure at the outset of his employment, meant that the Complainant was effectively prevented from pursing a resolution to the issues which arose during the course of his employment with the Respondent.

Furthermore, I find that the repeated failure of the Respondent to deal with the Complainant’s issues about rostering and the allocation of shifts was entirely unreasonable.

In the absence of an employee handbook, and based on the fact that he had received payment for his initial period of sick leave, I am of the view that the Complainant was entitled to believe that he had a contractual entitlement to payment while absent on sick leave. Accordingly, I find that the decision of the Respondent in September 2018 to cease paying the Complainant while he was on sick leave was a breach of the implied terms of his contract.

Based on the uncontested evidence adduced, I find that the Complainant had no option but to terminate his employment with the Respondent as a result of the Respondent’s behaviour. I find, therefore, that the Complainant was constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977.

Mitigation of Loss

Following the ending of his employment, the Complainant was out of work for two weeks. Whilst he managed to secure alternative employment, he is suffering an ongoing annual loss of €5,526.

I find that this complaint is well founded and I order the Respondent to pay the Complainant redress of €12,500.

The Complainant submits as follows:

Section 11 of the Protected Disclosures Act 2014 amends the Unfair Dismissals Acts to protect employees from being penalised as a result of having made a protected disclosure by making dismissal for having made a protected disclosure an automatically unfair dismissal entitling an employee to relief under the Act.

In the case at hand, the Complainant made disclosures to his employer in June 2018 about the inappropriate and illegal manner in which the Respondent had dismissed BC and JW. The Complainant maintains that these dismissals were in breach of the legal obligation placed on the Respondent by virtue of the Unfair Dismissals Acts. The Complainant maintains that the above disclosure come within the definition of section 5(3)(b) of the 2014 Act, that being that the disclosures related to: a failure to comply with a legal obligation regarding compliance with the Unfair Dismissals Acts. The Complainant maintains that he made the disclosures to his employer and that he had a reasonable belief that the disclosures tended to show wrongdoing and that the issue came to his attention in connection with his employment. The Complainant maintains that he has satisfied the requirements of the 2014 Act and that the disclosures amounted to a protected disclosures for the purposes of the 2014 Act and that, as such, he is protected from penalisation in the form of dismissal resulting wholly or mainly from such a disclosure under the Unfair Dismissal Acts.

In Dougan & Clark v Lifeline Ambulances Ltd (Unreported, Circuit Court, Comerford J), Judge Comerford considered what circumstances would amount to substantial grounds for a Court to conclude that a dismissal has resulted wholly or mainly from the making of a protected disclosure. Therein, Comerford J concluded that such factors would necessarily include: the temporal proximity between the making of the protected disclosure and the dismissal; whether any animosity arose between the parties as a result of the protected disclosure prior the dismissal; whether fair procedures and natural justice were afforded to the Complainant in the dismissal procedures adopted by the Respondent; whether any such apparent fair procedures and natural justice were real or merely window dressing; and whether the Complainant was treated in a less favourable manner to comparative employees who had not made protected disclosures. Comerford J concluded that, on the facts of the case, particularly the fact that there was a temporal proximity of 2 and a half months’, that the dismissal had resulted wholly or mainly from the protected disclosure.

In the case at hand, there is a striking temporal proximity between the disclosure and the commencement of the Respondent’s adverse approach to the Complainant, culminating in his constructive dismissal. Furthermore, there were clear signs of hostility between the Complainant and the Respondent immediately following the making of the disclosure. The Respondent failed to afford the Complainant even the slightest scintilla of fair procedures or due process in the grievance procedures that it afforded to the Complainant in relation to his complaints. Finally, the Complainant was treated less favourably than hypothetical comparators who might not have made a disclosure, in that he was not afforded any of the procedural grievance rights which are typically afforded to employees. The Complainant maintains that the facts of the case satisfy every single factor to be considered in determining whether his dismissal resulted wholly or mainly from his disclosure as identified by Comerford J in the Dougan & Clarkdecision. As such, the Complainant respectfully submits that the Respondent penalised him for having exercised his rights and making a disclosure pursuant to the Protected Disclosure Act, 2014.

The Respondent did not attend the adjudication hearing. I am satisfied that the Respondent was properly on notice of the time, date and location of the adjudication hearing.

It is well-established, and underpinned by jurisprudence, that a Complainant cannot recover more than one amount of compensation in relation to matters arising from the same set of facts.

According to the Complainant’s uncontested evidence, the sequence of events that culminated in the Complainant’s decision to terminate his employment with the Respondent commenced in early May 2018.   The Complainant’s alleged protected disclosure did not occur until June 2018.  

I am of the view that the Complainant’s referral under the Protect Disclosures Act, 2014 is grounded on a sub-set (commencing in June 2018) of the same set of facts upon which he relied to ground his referral under the Unfair Dismissals Act.

I find, therefore, that this complaint is not well founded.

I find that this complaint is not well founded.

Constructive dismissal – protected disclosure