Complainant

Respondent

Anonymised Parties

A Contracts Manager

A façade systems manufacturer

Act

Complaint Reference No.

Date of Receipt

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

CA-00023399-001

21/11/2018

The Complainant was employed by the Respondent from 8th November 2016 to 3rd July 2018 as a Contacts Manager.

He referred his complaint to the WRC on 21st November 2018 claiming that he had to leave his job due to the conduct of his employer.

The Complainant submits as follows:

The Complainant was employed as a Contracts Manager. When the Complainant commenced employment with the Company on the 8th November 2016, his starting base salary was €67,500, with a fully expensed company car, laptop and mobile phone. He was to receive a 0.25% bonus scheme, increasing to 0.5% after twelve months, and 1% after 18 months. The Complainant reported directly to JD, Managing Director of the Respondent.

The Complainant submits that, in relation to the projects the Complainant was involved in, during 2017 there was a continuous problem with material arriving to site in an unsatisfactory condition and the Complainant raised these non-conformance issues with the Quality Control Manager, PS, the factory Production Manager, SM, and JD. As the Complainant continued to raise the said issues, SM began to become increasingly aggressive towards his team and himself with the team beginning to feel they could not approach SM regarding these production matters due to his hostility. Throughout 2017, the Complainant noted there was an underlying current of aggression within the Respondent and witnessed numerous outbursts by SM within the office environs or on the factory floor to operatives regardless of their position within the Respondent.

As the Complainant's existing project progressed, the glass was delivered to the Respondent factory with only one number breakage occurring in transport. As certain elements of work were being carried out in the factory, these units had to be moved within the yard to the factory by fork lift and breakages started to occur on the factory floor. At no stage did SM advise the Complainant on these breakages as they occurred. The Complainant heard of the breakages from a third party. In September 2017, units were being returned to Germany through a courier and the Complainant noticed SM boxing same for return and raised a query with SM. SM began to verbally abuse the Complainant in an extremely threatening manner on the factory floor. He then proceeded to have two or more similar outbursts directed against the Complainant within the factory environs.

On 31st of January 2018 the Complainant requested a formal review of his performance with JD, Managing Director and MB, Financial Director, since there was no HR department within the Respondent, to discuss the on-going issue of bullying with SM and how it was affecting him and his team. JD advised this was not the way the Respondent operates and wanted to know was the Complainant angling for something. The Complainant stated he would like a sit down to discuss how he was feeling and other issues he had and the meeting was pencilled in for 17th February 2018.

On the 16th February 2018, the Complainant's team noticed a unit of glazing worth in excess of

€5,500 for the current project had gone completely missing. On the 19th February 2018 the Complainant arrived into work and proceeded straight to the yard with one of his team members (BO) to search for the unit. SM proceeded to join them and, as they searched the remaining glazed units, he became more and more aggressive towards the Complainant in front of the team member. SM's fists were closed and he was shouting and using vile language towards the Complainant. The Complainant felt physically threatened and removed himself from the area fearing for his personal safety. The Complainant discussed what had happened with his team member (BO) who had been with the Company for twelve years. The team member informed the Complainant this behaviour from SM was nothing new and was something that happened all the time. The Complainant then met another employee (PB) and told him what had just happened. PB stated he had met SM immediately after the incident and reported him as being extremely agitated and aggressive and referring to the Complainant in offensive terms. The Complainant and PB later met SM who acted as if nothing had happened and proffered no apology for the aggressive and threatening behaviour and vile and insulting language he directed toward the Complainant. The Complainant then immediately went into his meeting with JD and MB and advised them as to what had just happened with SM. He told them this was not a once off incident and referred to the earlier incidents of bullying directed toward him by SM during 2017. The Complainant stated the matter had spiralled completely out of control and he felt he had no other option but to tender his resignation due to what had been occurring on an ongoing basis. JD said he would speak with SM and they (management) would deal with it. He asked the Complainant to consider his position and review same over the weekend.

On 22nd February 2018 the Complainant had another discussion with JD in his office. JD stated he had spoken with SM and the issue would never occur again and he requested that towards the end of the week the Complainant sit down and have a cup of tea with SM and resolve the matter. SM was not present for this meeting and the Complainant did not know how to approach him in regard to same as the Complainant was each time on the receiving end of the abuse and each time after a confrontation with SM was left deflated mentally and physically. The Complainant told JD that he was extremely uncomfortable with sitting down with SM as suggested and received no reply from JD. He stated he wished to stay with the Respondent once this issue was resolved but emotionally, mentally and physically he was wrecked from same. JD did not suggest or propose any alternative grievance procedure or remedy to the Complainant with which he would be comfortable at this or at any time thereafter.

On 12th March 2018 the Complainant could not attend work due to ill-health arising from the oppressive and unpleasant work environment in which he found himself over a considerable period of time and following a period of health related absenteeism, handed his letter of resignation on 3rd July 2018 to JD advising him he could not return to his employment.

The Complainant claims:

1. The Dignity at Work Policy contained in Respondent’s Safety Statement was inadequate and not fit for purpose by reason of the Respondent's failure to have in place a HR Department and/or trained staff to deal with complaints of sustained bullying by an employee against a fellow employee and/or a failure to have in place a proper and functioning grievance procedure whereby a complaint, at all stages, is processed, overseen and resolved by senior management, even on an informal basis, and not solely left to the devices of the victim and perpetrator for resolution.

2. The purported attempt by JD, Managing Director, to address the bullying incidents by speaking to the perpetrator alone and directing the injured party and the perpetrator to resolve matters by sitting down and having a cup of tea later that week was grossly unfair and inadequate and constituted a failure to take any or proper steps to ensure the Safety, Health & Welfare at Work of its employees including the Complainant. The purported grievance procedure to be availed of by the Complainant was hopelessly inadequate and not fit for purpose in all the circumstances. The Complainant could not reasonably be expected to avail of or utilise the said procedure.

3. The Complainant's decision to resign from his employment, on any objective analysis, was a perfectly reasonable one in the particular circumstance as required by Section 1 of the Unfair Dismissals Acts, 1977-2015. The Complainant was justified in his decision, on the facts, and it was reasonable for him to resign.

4. While it is usual for a Complainant to utilise and/or exhaust internal remedies and/or grievance procedures, the facts herein establish the purported grievance procedure and/or internal remedy afforded him by JD, Managing Director was so unreasonable, unfair and inadequate as to amount to being effectively unworkable and nugatory.

The Complainant relies on the following cases: Allen v Independent Newspapers Ltd [2002 EAT] ELR 84, Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293, Smith v Tobin [1992 EAT] ELR 293 and the statement of law regarding Constructive Dismissal contained in paragraph 19.07 Redmond on Dismissal Law, Third Edition 6.

The Complainant has mitigated his loss by taking up another employment but has and continues to suffer loss, damage and expense.

Particulars of Loss: The Complainant has suffered a net loss in pay of €503.22 monthly since taking up his new employment which is ongoing. He has also suffered an ongoing loss of €47 per week by virtue of his outlay of €10,000 to purchase a new car including tax and insurance to replace the company car which had been provided to him by the Respondent Company.

Evidence of the Complainant

The Complainant gave direct evidence at the hearing. He stated as follows:

He outlined the details of his contract of employment and reporting structure. He stated that there was an ‘underlying current” between him and SM because he raised some non-conformance issues. He stated that SM was aggressive specifically towards him but a number of other team members also felt that they could not deal with him. He was not approachable. The Complainant stated that, in respect of the broken units, SM told him that they were not packing it right. The Complainant noted that he was not responsible for packing. He stated that SM used offensive language in the factory on the day of packing glass for transport to Germany. The Complainant further stated that he had to approach SM on the same day and again he was aggressive.

The Complainant stated that the event of 19th February 2018 was unprofessional. He said that there was ‘nearly foam coming out of his [SM] mount, his fists were closed, he walked at fast pace, back and forth calling names’ which put the Complainant in fear. When they met later SM acted like nothing had happened, he offered no apology.

The Complainant stated that he had his performance review coming up and he wanted to discuss the matter. He agreed that he did not raise a grievance in relation to bullying but he spoke with JD and they agreed to meet to discuss the issue. The Complainant stated that in the meantime another job opportunity came about. He claims that at the meeting with JD he outlined the details of the incident of 19th February 2018. The Complainant said that he advised the management that this was happening to him and others and that they are leaving themselves open to a legal action. He then resigned. JD told him they would be sad to see him go and asked him to reconsider. JD said that they would have a word with SM. The Complainant said that on the next Monday he was told to meet with SM to talk over cup of coffee. The Respondent did not offer mediation / facilitation and senior management did not get involved to try to resolve the matter between them. The Complainant did not feel comfortable about that. As no alternative course of action was offered to him, the Complainant informed the Respondent that he would like to stay but needed the Respondent to sort out the problem or he would not stay.

The Complainant stated that he was not sleeping or eating well, he could not concentrate and was physically ill. He arranged to see counsellor for a while afterwards. The Complainant confirmed that, due to depression and anxiety he submitted GP medical certificates from 12th March to 3rd July 2018. He left the Respondent on 3rd July 2018 and on 17th July 2018 he started new employment. The Complainant noted that, in order to secure a new employment he had to buy a car (loan of €10k), cover the cost of motor tax and insurance.

In cross-examination, the Complainant confirmed that when he offered his resignation he was asked by JD to think about it over the weekend. He accepted that between the incident of 19th February and his sick leave he never raised a grievance. He stated that he had a draft correspondence ready but never sent it.   The Complainant also accepted that he broke his leg at some stage between 12th and 30th March 2018, no exact date was provided. He agreed that he was regularly submitting his certs and had conversations with MB and JD.

In respect of the car purchase, the Complainant confirmed that he secured the loan on 12th June 2018, prior to his resignation. The Respondent put it to the Complainant that he had no intention of returning to the Respondent who provided him with a company car.

The Respondent submits that the Complainant was employed in a senior position with the company as a Contracts Manager. He had responsibility for several large projects. The Respondent claims that the Complainant’s employment was uneventful during his time with the company.

The Respondent claims that in 12th March 2018 the Complainant emailed the Respondent to say that he would not be in that day and a doctor’s certificate would follow. This certificate was a medical certificate in relation to anxiety/depression. It is the Respondent’s understanding that this was due to personal reasons. It is also the Respondent’s understanding that shortly after going out on sick leave the Complainant broke his leg, sometime in March 2018. The Respondent continued to receive medical certificates from the Complainant until 2nd July 2018. On 3rd July 2018 the Complainant rang JD and stated that he wished to resign from his employment. Following this conversation, he also put his termination in writing and wished the Respondent and JD the best of luck.

At no time during this period did the Complainant make any allegations to the Respondent in relation to conditions of employment or any other matters surrounding his employment. The Respondent exhibited copies of emails from the Complainant during his sick leave and argued that they are not emails indicative of having any issue with the employer.

The Respondent submits that a claim for constructive dismissal has to meet a high bar in order to succeed. At no stage during the Complainant’s employment with the Respondent did he ever issue any grievance in relation to his employment or any other matters in relation to his employment. The Respondent argues that this is a simple case of an employee resigning his employment and moving to another employment. The Complainant sought a new job during his period out sick and secured alternative employment.

The Respondent submits that it has extensive procedures in relation to bullying and harassment and at no stage were these invoked.

The Unfair Dismissals Act, 1977 states “the termination by the employee of his contract of employment with his 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 Respondent submits that the case law in relation to this matter is quite clear and settled. In cases of constructive dismissal an employee who claims that he/she was constructively dismissed following a resignation must show that he/she invoked the company’s grievance procedures. This clearly did not happen in this case and therefore the claim must fail.

The Respondent completely refutes the allegations contained in the Complainant’s submission.

The Respondent cites the following in support: Employee v Employer UD1209/2010, Veronica O’Regan v Ascon-Rohcon Ltd UD1120/2002, Desmond H Lalor v Richardson Insurances Ltd UD768/2001.

Evidence of JD, Director

JD stated in his direct evidence that on 19th February 2018 the Complainant told him “I am after having an argument with SM and I am resigning. I am giving 4 weeks’ notice”. JD confirmed that on Monday the Complainant told him that he was staying. JD noted that he would have held a project meeting every second Friday with the Complainant and the Complainant has never mentioned any issues to him. He also pointed out that at no stage was the Respondent informed that the Complainant’s depression and anxiety were work related.

Preliminary matter: witnesses

The Complainant’s representative wrote to the WRC on 17th April 2019 informing that the Complainant intends to call two witnesses, namely BO and PB, team members. At the hearing, the representative informed the hearing that letters requiring the witnesses’ presence were issued on 17th April 2019. While they confirmed that PB was ill and not able to attend, BO was not in attendance at the hearing and they requested the WRC to notify BO and require him to attend a newly scheduled hearing to give evidence in the proceedings. The Complainant argued that BO witnessed the incident of 19th February 2018.

Having heard the parties’ arguments in that regard, I find that BO, by the Complainant’s own evidence would have been possibly aware only of the incident of 19th February 2018. The Respondent did not dispute that an incident did occur on 19th February 2018 after which the Complainant informed JD that he was resigning his position. I therefore find that, as there was no dispute in that regard, the case would not turn upon BO’s evidence and his presence is not necessary.

Substantive matter:

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.”

In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of his contract of employment. It was not in dispute that the Complainant resigned from his position by telephone call and in writing by email on 3rd July 2018.

The Complainant is claiming that he was constructively dismissed from his position as a result of bullying by Production Manager, SM.

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus or burden 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 appropriate 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 [1978] 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. 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 [2009] E.L.R. 61], it said that “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.

The Complainant argues that due to bullying he had experienced and the failure of the Respondent to address it, his position ultimately became untenable and he was left with no alternative but to resign from his employment.

The Respondent disputes the claim of constructive dismissal. The Respondent contends that the Complainant resigned of his own volition and failed to instigate the internal grievance procedures.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he/she had no option in the circumstances of his/her employment other than to terminate his/her employment. The notion places a very high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his grievance with his employers.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

The Complainant argued that the behaviour of SM towards him amounted to bullying. The Complainant alleged that there was “an underlying current of aggression within the Company” and claimed that he witnessed numerous outbursts by SM to operatives. He referred to a specific incident of September 2017 when SM allegedly verbally abused the Complainant in a threatening manner on the factory floor. The Complainant claimed that SM “then proceeded to have two or more similar outbursts directed against the Complainant within the factory environs.” The Compliant referred also to an incident of 19th February 2018 when, he claims, SM was aggressive towards the Complainant.

I note the Complainant’s assertion that on 31st January 2018 he requested a meeting with JD, Managing Director and MB, Financial Director to discuss the issue and it was agreed that such a meeting would take place. Following the incident of 19th February 2018 the Complainant met with JD and MB. There was a conflict of fact between the parties as to the extent of the discussion which took place. The Complainant submitted that he informed them that he wished to resign his position due to SM’s behaviour and outlined the details. The Respondent argued that the Complainant referred only to the argument of 19th February 2018. The parties agreed that the Complainant was asked to reconsider his position and, on the 22nd February, the Complainant told JD that he would not leave. Thereafter, on 12th March 2018 the Complainant submitted his sick cert and he remained on sick leave until 3rd July 2018 when he resigned from his employment.

The Complainant was in email contact with the Respondent on numerous occasions throughout his sick leave. On 13th March 2018 the Complainant thanked MB for “all the help and your extremely kind words”, he commented that MB is a complete lady and rock of the office. He further said that “your words have not gone unnoticed and really meant a lot to me personally”. The Complainant also queried his sick leave entitlements and upon confirmation that he would receive his full pay for the next couple of weeks “and hopefully you will feel whole lot better by then, but if not we will have a chat” the Complainant sent a further email expressing his gratitude. He said: “this really means a lot to me and to know that both your good self and [JD] believe in me like this means the world to me and I will not let yee down once I get my head cleared”.

There were some more emails sent thereafter and, on 3rd July 2018 the Complainant emailed the Respondent informing that he would not be returning to his position and he wished the Respondent the best in the future. At no stage did he indicate that his sick leave is in any way related to any work related matters. He did not make a complaint, raise a grievance or allude his unhappiness with the conditions of employment or the alleged bullying.

In considering this issue, I am satisfied that the Respondent had an established Grievance Procedure and a Dignity at Work Policy in place, neither of which appear to have been invoked by the Complainant. I find that the Complainant was made aware of the existence of the Respondent’s grievance and disciplinary procedures which formed part of his contract signed on 17th November 2016. The Dignity at Work Policy deals specifically with bullying and states clearly that management at all levels at the Respondent organisation will not tolerate bullying behavior. It outlines that an employee who believes he is being bullied can, on a strictly confidential basis, seek help/advice from a supervisor, safety officer, etc. and an attempt would be made to resolve the matter in an informal low-key manner. The policy goes on to say “…if this proves unsuccessful or unsatisfactory to the complainant then they may choose to make a formal complain to [the Respondent] management who will then formally investigate the allegations…”

I find that the Complainant did have opportunities open to him to adequately and sufficiently raise those issues through the Respondent’s procedures. I cannot accept that the Respondent knew or ought to have known that the Complainant’s sick absence was a result of work-related stress.

I note that the Complainant secured a car loan prior to his resignation (the lender documentation is dated 12th June 2018). The Complainant started his new employment on 10th July 2018, as per a copy of the contract provided.

Having examined the facts as presented, I find, on balance, that the Complainant did not utilise the internal procedures available to him to process his bullying complaints. Therefore, I must conclude that the standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met where the Complainant failed to exhaust the procedures available to him before taking the step to resign, thereby not providing the Respondent with an opportunity to address his grievance in a proper manner. In all the circumstances, I cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal nor was the Respondent’s conduct such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of his contract of employment. I am, therefore, satisfied that the Complainant was not constructively dismissed.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare that the complaint is not well founded.

Constructive dismissal- alleged bullying- grievance procedures not exhausted