Complainant

Respondent

Anonymised Parties

A Yard Man

A Company

Representatives

Fergal Doyle BL, Francis B.Taaffe & Co Solicitors

DAC Beachcroft Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018393-001

09/04/2018

The Complainant is a non-national and worked for the Respondent from 1st December 2015 to 9th January 2018 as a Yard Man and Stock Controller. He claims that he has been constructively dismissed.

The Complainant was subjected to bullying and harassment, verbal abuse, intimidation and threats of violence over the course of his employment.

He raised his treatment with his manager on several occasions but his manager did not believe this was worthy of investigation. He was told “you are an f… foreigner, go back to your country”, when reported to his manager, the manager said “Oh don’t mind them they are only joking”. There was ongoing difficulties with staff parking in the customer car park which the Complainant was responsible for and he was told by staff “don’t tell me what to do you f…… foreigner, I’ll can park where I want”. His requests to staff to park in the staff car park were constantly ignored and he was berated by staff. When doing a load check, a staff member acted aggressively, shouting at the Complainant and threw an extension lead at him. Staff made fun of his name and a pejorative version of his name was shown on a whiteboard in the office.

Although he made several complaints to his manager, nothing was done. The Complainant was very upset and found this a painful environment. This affected the Complainant’s family life and he suffered from stress and depression. The final event occurred on 4th December 2017. He was threatened by a colleague that he would “smash his face”. He asked his manager to record this in writing and was questioned why. The manager was reluctant to do so, and only did so on the basis that the Complainant agreed not to pursue a formal complaint. As there was no other way to record this, the Complainant agreed and signed the note. The note was marked the employee “does not want to make official just to make a statement”. The Complainant was upset and spent the next few days in work in a confused and depressed state.

In the aftermath of the 4th December 2017 incident the Complainant used a company fuel card to purchase petrol for his own car, fully intending to refund the cost when his wages were paid. He then went out on sick-leave.

He was on sick-leave from 15th December 2017 to 9th January 2018 when he sent a text to his manager stating he did not want to work for the company anymore. The company wrote back the same day accepting his resignation with immediate effect.

Subsequently on 14th February 2018, the Complainant wrote back to the company in response to their letter of 9th January 2018 stating that he has been experiencing difficulties with bullying and harassment at work over the last 2 years and has been suffering significant stress and anxiety. He wrote the text message while very stressed and due to the fact that he no longer wished to continue working under the conditions created due to the harassment and bullying he suffered. He has lost all confidence in the company and its procedures in dealing with his complaints of bullying and harassment.

The Complainant relies on the ruling in Brady v Newman [UD330/1979]:

“…an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him so also must the employer behave”.

The Complainant says the failure of the Respondent to conduct any investigations has failed to preserve his reasonable trust and confidence. He continued to complain to his manager in accordance with the Respondent’s grievance procedures over 2 years sadly to no avail. It is submitted that the Respondent has a duty of care to look after the health and safety of employees in the workplace and this includes prevention of bullying (including the investigation of same). This is implied by statute and goes to the root of the contract of employment. The failure to investigate the bullying conduct amounted to undermining the relationship of trust and confidence between the Complainant and Respondent. The Complainant’s written English is very poor.

In addition, the Complainant relies on Joyce v Brothers of Charity Services which said that where an employer conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, if so the employee is justified in leaving. The Complainant also relies on the decision in Berber v Dunnes Stores Ltd, and that the prevention of bullying includes the prompt and timely investigation of the complaints of bullying together with clear and concise reporting together with conclusions and if necessary recommendations.

The Complainant seeks compensation for his financial loss. He was not paid while on sick-leave.

The Complainant commenced employment on 9th December 2015 and was employed as a stock controller/yard man. He signed his contract of employment on 17th December 2015. This refers to the company disciplinary and grievance procedures being available on the company intranet and copies available from HR.

The Complainant resigned on 9th January 2018 in the context of disciplinary proceedings. There was no formal complaint made by the Complainant prior to resignation, and there was no reference in his resignation to any complaint. Following an investigation into alleged misuse of a fuel card, the Complainant was invited to attend a disciplinary hearing. He went on sick-leave and subsequently resigned. The Complainant commenced another role 2 days after his resignation. The first reference to alleged bullying and harassment at work was made by the Complainant after his resignation had been accepted. However no details were ever furnished to the Respondent despite the Complainant being afforded the opportunity to do so.

The Respondent makes a preliminary application to dismiss the case as it is frivolous and vexatious under S42 of the Workplace Relations Act 2015. The Respondent relies on Nowak v Data Protection Commissioner [2012] IEHC 449 when Birmingham J found the word frivolous meant futile or hopeless. In O’N v McD [2013] IEHC 135 Birmingham J held the word meant the Plaintiff had no reasonable prospect of success.

The Complainant has failed to provide adequate details of his complaint in accordance with the WRC guides to procedures or details of alleged losses.

The Complainant’s claims unfair dismissal under S 6 of the Unfair Dismissals Act 1977-2015 and that he has been constructively dismissed under Section 1 of the Act which defines “dismissal” in relation to an employee as:

“ the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in 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 a claim of constructive dismissal, the burden of proof is on the Complainant to prove on the balance of probabilities, that firstly the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Respondent relies on the Supreme Court in Berber v Dunnes Stores [2009] IESC 10 which held that:

“There is implied in a contract of employment a mutual obligation that the employer and employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

The Court set out the following test:

“1 The test is objective. 2 The test requires that the conduct of both employer and employee be considered. 3 The conduct of the parties as a whole and the accumulative effect must be looked at. 4 the conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee 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 Respondent submits that the Complainant has failed to identify any action of the Respondent which repudiated his contract of employment, and there was no breach of his contract. The Complainant has failed to identify any unreasonable behaviour on the part of the Respondent. The Respondent’s line manager who was present at the hearing denies any complaints were made by the Complainant whatsoever, and no formal complaint was ever made. The Complainant was aware of the grievance procedure from his contract of employment and had access to a computer. The Respondent was unaware of any allegations of bullying or harassment of the Complainant, and if it had been aware it would have investigated this.

Following the incident of 4th December 2017, the Complainant said that he did not want to make an official complaint, but notwithstanding this the Respondent carried out investigations with a number of witnesses. However, the Complainant resigned before the investigation concluded. Corrective action was taken to ensure there will be no repeat of this incident by the Respondent. By letter of 23rd February 2018 the Respondent sought details of any other incidents that the Complainant would like to discuss, but the Complainant did not respond.

I have heard the evidence of the parties and considered their written submissions.

The Complainant’s claims unfair dismissal under S 6 of the Unfair Dismissals Act 1977-2015 and that he has been constructively dismissed under Section 1 of the Act which defines “dismissal” in relation to an employee as:

“ the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in 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 a claim of constructive dismissal, the burden of proof is on the Complainant to show that either the Respondent has breached his contract and as a result he is entitled to resign or alternatively that it is reasonable for the Complainant to resign given the conduct of the Respondent.

The employee must also terminate their contract in response to the employer’s conduct. Delay does not prevent an employee being constructively dismissed but may be found to be implied affirmation as in WE Cox Toner (International) Ltd v Crook 1981 IRLR 443. The breach of contract must be ..“ 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 “ Western Excavating (ECC ) Ltd   -v- Sharp [1978] IRLR 27.

The Complainant alleges that throughout over 2 years of his employment he was bullied and harassed, suffered verbal abuse, intimidation and threats of violence from colleagues and these are very serious allegations. He has adduced evidence of his name being ridiculed on a whiteboard in the office, and a written statement made to his manager recording an alleged threat by a colleague of “I’ll smash your face” on 4th December 2017. He alleges he complained about his mistreatment to his manager repeatedly who did nothing about this during the 2 year period. He claims the failure of his employer to investigate his complaints amounts to a breach of his contract and the implied duty of trust and confidence owed by the employer.

The Complainant’s line manager who gave evidence at the hearing denies the Complainant ever made any complaints nor any formal complaint regarding the incident of 4th December 2017. Notwithstanding this, the manager reported the incident on 4 December 2017 to HR and HR advised given the seriousness of the allegations made by the Complainant, the company should investigate the incident.

The Complainant signed a contract of employment which provides:

“A copy of the Company’s disciplinary and grievance procedures are available on the Company intranet, HSS World. Copies are also available from the HR Department. These policies and procedures are not contractual.”

The Respondent gave evidence that the Complainant used the computer to book his holidays and obtain a password so was in a position to contact HR if he wished to do so.

I note that the Complainant remained in the office following the incident on 4th December 2017 and then went out on sick-leave on 15th December 2017 following the commencement of disciplinary procedures against him for misuse of a fuel card. He resigned without returning to work, and without any reference to his serious allegations of bullying and harassment, intimidation and threats of violence by colleagues. It was some 6 weeks after resignation that the Respondent was first notified of these allegations in writing.

The Complainant alleges serious mistreatment by colleagues during his employment over a lengthy period. He was aware that the grievance procedure was available from HR. It was open to him to invoke the formal grievance procedure in order to address his complaints, if his line manager did not take them seriously. The Respondent denies any formal complaints were made. It is surprising no other action was taken by the Complainant given the long period over which he says the alleged conduct occurred. The Complainant’s statement dated 4 December 2017 refers to a threat of violence against him. It was also marked “Employee does not want to make official just to make a statement”. The Respondent began to investigate this incident but had not concluded the investigation prior to the resignation of the Complainant on 9th January 2018, the Complainant being absent on sick-leave from 15th December 2017 onwards.

I am not convinced that the resignation of the Complainant is linked to the alleged mistreatment and failure to investigate his complaints as the Complainant did not resign until some 5 weeks after the incident on 4th December 2017. The Complainant started a new job 2 days after his resignation. Written notification to his employer of the alleged bullying harassment, intimidation and verbal abuse did not occur until a further 6 weeks elapsed after resignation. In order to discharge the burden of proof in a constructive dismissal claim, the Complainant must show that he acted reasonably, gave the employer an opportunity to address his grievance and exercised the agreed internal grievance procedure in accordance with the EAT ruling in Conway –v- Ulster Bank [UD 474/1981] At the very least the Complainant should have communicated his grievance before resigning in order to give the Respondent an opportunity to address the issues. At the time of his resignation there was no formal notification of the alleged treatment to the Respondent, however the Respondent was in fact in the process of carrying out an investigation into the incident on 4th December 2017. In light of the foregoing, I find that the Complainant has not discharged the burden of proof that either his contract was breached to the extent that he was entitled to resign or that it was reasonable for him to do so and the claim fails.

The Complainant has not discharged the burden of proof that either his contract was breached to the extent that he was entitled to resign or that it was reasonable for him to do so and the claim fails.

Burden of proof, implied duty of trust and confidence, reasonableness, requirement to exercise the grievance procedure.