ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010481
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00013850-001 | 11/09/2017 |
Date of Adjudication Hearing: 21/08/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
At the Hearing of the 19th June 2018 the Complainant applied to the Adjudication Officer to give evidence even though the Respondent was not present. The Adjudication officer allowed the evidence to be presented although cautioning that the hearing might need to be reconvened if the Respondent presented appropriate evidence to explain the non-attendance. The evidence pointed to the fact that the Respondent had been properly notified of the Hearing.
The issue of the non-attendance of the Respondent party was the subject of subsequent correspondence culminating in a High Court order 2018/635JR directing the Adjudication Officer to issue an Adjudication decision based on evidence presented to the Hearing of the 19th June 2018.
Background:
The issues in contention concern the alleged constructive Unfair Dismissal of a Security Officer by a Security Company. |
1: Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent Company on the7th July 2016. For the first five to six months things went fine but after this the Complainant began to experience a pattern of rude and abusive behaviour from his immediate Supervisor (Mr. Xa). The Complainant reported Mr Xa’s behaviour to Mr. Xb-the Operations Manager. This exacerbated the situation with Mr. Xa and the bullying & harassment got worse. Various heated verbal exchanges followed with Mr. Xa. The Complainant was repeatedly threated with remarks such as “Your gone”. The Complainant’s shifts were reduced and altered by Mr. Xa. He was almost continuously assigned Car Park barrier duties which were unsociable and bad for his health. A meeting was arranged by Mr. Xb with the parties (Mr. Xa and the Complainant). Mr. Xa was verbally abusive during this meeting. The Complainant requested that the HR Dept be involved in any further meetings. The Complainant, formally by e mail of the 10th August 2017, requested Mr. Xb to have the matters raised at the HR Dept level. A meeting was arranged for the 14th August 2017 and deferred to the 17th. The Complainant had gone on Sick leave from the 11th August 2017. Mr. XB denied the Complainant’s request to have a HR Dept representative present at this meeting. This meeting did not go well. Mr. Xb was aggressive. When the Complainant was fit to resume work, some days later, he contacted the Respondent. However, he was never placed on the Roster, explanations were not forthcoming either from Operations or the HR Dept. On foot of his non-rostering and the very unsatisfactory responses, if any at all, to his complaints the Complainant gave notice on the 23rd August and left on the 1st September 2017. The Complainant maintained that his former Employer had acted completely Unreasonably in his refusal to take seriously the Complainant’s complaints regarding Mr. Xa, no proper investigation ever took place or if any did the results were never communicated to the Complainant. The Respondent was completely at variance with the accepted norms in the Labour Court Code of Practice regarding Workplace Bullying, the HSA Code of Practice on the Prevention and Resolution of Bullying at Work and was also liable under the Equal Status Acts,2000-2015 regarding his treatment of the Complainant -frequently calling him a “foreigner” in most disparaging terms. In summary the Complainant had been subject to constructive dismissal by the Respondent Unreasonable Behaviours exemplified in their complete disregard of the Labour Court Code of Practice on Bullying and the HSA Code of Practice for Employers and Employee on the Prevention and Resolution of Bullying at Work. In addition, the rights of the Complainant as regards the Equal Status Acts were also ignored. The Complainant’s Legal representative pointed to the normal two stage Legal Test of Breach of Contract and Unreasonable behaviours in Constructive Dismissal cases. The Respondent had failed on both and a claim of Constructive Dismissal is well justified. |
2: Summary of Respondent’s Case:
The Respondent did not attend the Hearing of the 19th June 2017. It was established that proper notification had been served on them. Subsequent correspondence followed culminating in a High Court Judicial review decision (2018/636JR) to direct the Adjudication Officer proceed on the basis of the evidence presented on the 19th June 2017. |
3: Findings and Conclusions:
3:1 The relevant Law The main piece of Legislation pertaining to this case is the Unfair Dismissals Act,1977 supported by SI 146 of 2000-Stautory code of Practice on Grievance and Disciplinary Procedures. There is a very considerable body of Legal precedent in the area of Constructive Dismissal which is well set out by Dr D Ryan in Chapter 19 of Redmond on Dismissal Law: Bloomsbury Professional 2017 The Labour Court in DWT 1468 – Paris Bakery & Pastry Ltd v Mrzljak gave a very useful summary which I follow below. The Labour Court stated
“The term “dismissal” is not defined by the Act. However, the reference in subsection (2) of s.26 of the Act to the Unfair Dismissals Act 1977 to 2007 suggests that the term should be given the same meaning as it ascribed to it by those Acts. Section 1 of the Unfair Dismissals Acts 1977 -2007 defines dismissal as: - · (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (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, or Paragraph (b) of this definition is particularly relevant in the instant case. Paragraph (b) applies where an employer behaves in a way that amounts to a repudiation of the contract of employment. It was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp[1978] I.R.L.R. 332 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 discharged from any further performance”. The Labour Court continued to state that Paragraph (B) of the definition from the Unfair Dismissals Act,1977 deals with a situation in which the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving there and then.” However, in all cases the individual case can only be determined by reference to its own facts and evidence presented. These must be considered next. 3:2 Consideration of Evidence presented. The Complainant gave detailed oral and written evidence. The Respondent was, it was clear and later well established, had received prior notification of the hearing. Then non-attendance and the non-presentation of any rebuttal evidence was a factor to be reflected upon by the Adjudicator. In this case the conduct or indeed non-conduct of the Respondent in relation to their responses to the Complainant regarding the alleged behaviours of the immediate Supervisor Mr. Xa required detailed explanation which was not forthcoming. It could be argued, on the balance of probability, that the Respondent non-responses or the responses offered to the Complainant had the effect of undermining the duty of mutual trust and confidence which lies at the root of every contract of employment. It was also Employer/Respondent behaviour that, it could be reasonably argued, was so “unreasonable” that no normal employee could be expected to tolerate it any further. The direct oral evidence of the Complainant was straight forward and on the balance of probability appeared to have some substance The Complainant had repeatedly raised the issue of Mr. Xa (the Supervisor) behaviour with Mr. Xb -the Operations Manager and had requested that the issue be taken further with the involvement of the HR Department. E mail of the 10th August refers. The issue of the Non-Rostering of the Complainant (effectively removing him from the workforce) following his recovery from his illness also seemed to require a further detailed explanation from the Respondent. The Complainant referenced the HSA Code of Practice on the Prevention and Resolution of Bullying at Work and indeed the Respondent’s own Employee Handbook. The situation as described by the Complainant and the response of the Respondent Managers could not sit easily with either document. Reference was also made to an equality issue – the Complainant being called a foreigner in disparaging terms. 3:3 Summary and Final Conclusion. On the balance of probabilities and having carefully reviewed the oral & written evidence and by reference to paragraph (b) of the statutory definition the conduct /non-conduct of the Respondent constituted good grounds for a Constructive Dismissal claim. Accordingly, I find the Constructive Dismissal claim to be well founded. |
4: Decision:
4:1 Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The claim of Constructive Dismissal is well founded and is upheld.
Act | Complaint/Dispute Reference No. | Summary Decision /Please refer to Section Three above for reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00013850-001 | Claim of Constructive Dismissal is well founded. Redress of €20,000 is awarded. |
4:2 Redress
Section 7 of the Unfair Dismissals Act, 1977 requires that the Adjudicator consider redress that is “just and equitable having regard to all the circumstances”.
Consideration must also be given to the alternative remedies of Re Engagement and or Re Instatement. Neither were deemed appropriate in this case as the relationship had completely broken down between the parties.
Compensation is then the remedy.
The Complainant accepted that he had earned some €6,000 approximately as a Football coach since his dismissal. It was clear that this was a preferred form of work and he had not really made great efforts to find alternative work.
Taking the figures supplied in the written evidence the Complainant had a salary expectation of some €26,000 per annum.
Accordingly, and considering the earnings as a Football coach and likely future losses I award as redress the sum of €20,000 being one year’s salary less the Football earnings.
Dated: 06/03/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee