Complainant

Respondent

Anonymised Parties

A Ground Worker/Machine Operator

An Electrical Installation/ Construction Company

Representatives

Tom Collins Tom Collins

Julie Austin McDowell Purcell

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-00028698-002

24/05/2019

The Complainant commenced employment with the Respondent as a ground worker/machine operator on 21st July 2017.   The Respondent is a subcontractor working nationally constructing electrical installations and commissioning substations. The Complainant’s employment with the Respondent ended on 22nd February 2019. A complaint under the Unfair dismissals Act was lodged with the WRC on 24th May 2019. The fact of dismissal is in dispute.

The Complainant submits that he was constructively dismissed.

The Complainant provided a written submission.

The Complainant submitted that his problems with the Respondent first started over being left short for hours worked for three months in a row. The Complainant raised his concerns with his manager, but nothing was done about it, so he went higher up the managerial chain and brought his concerns to another manager. This manager sorted the problem out.

The Complainant submits that a couple of months after he had raised this problem a colleague “went for [him] with a knife”.   The Complainant submitted that nothing was done about this incident which left him fearful and anxious about returning to work.

A few months later, the Complainant submits that he and his work partner requested that they be given a particular type of vehicle but their request was turned down. The Complainant submits that he was subsequently abused by his line manager about his request for a particular vehicle.

On 15th January 2019, the Complainant submits that he was told that he was going on a training course outside of Dublin (his normal place of work) for three days. When the Complainant got home that evening, having driven his truck home as normal, he received a phone call from a manager telling him to park his truck up and that another colleague would pick him up the following day and bring him to the training course.

On 17th January 2019, the Complainant was instructed to go to the Respondent’s Main Office. When he arrived there, he was told by two managers that his line manager had received an anonymous call alleging that the Complainant had been abusing drugs. The Complainant assured the two managers present that he was not on any form of drugs/substances. The Complainant was told he was suspended with pay while arrangements were made for him to undergo a drugs test.

On 23rd January 2019, the Complainant submits that he attended the company doctor and underwent a full medical examination, including a test for drugs. The Complainant was told the test was clear and he was given the all clear to go back to work.

On 31st January 2019, the Complainant submits that he got a call from a colleague to tell him that he had been accused of being on cocaine; this caused the Complainant a lot of stress.   The same day the Complainant had a meeting with his line manager and another manager at which he raised several concerns including being the foot of false allegations about drug abuse, the unacceptable way he was being treated by his line manager and the way the rumours of his alleged drug abuse had been leaked to other colleagues.

The following week the Complainant submits that he was off work with stress. While he was off, he met an acquaintance who asked him about the allegations of drug abuse. The Complainant felt this was another indication that management had allowed personal information to be leaked out to other companies. The Complainant went to his GP who did not want him to return to work due to stress and certified the Complainant sick until 22nd February 2019.

On 22nd February 2019, not having heard anything from the Respondent about a return to work, the Complainant attempted to contact a manager but to no avail.

The Complainant submits that no member of the management team contacted him about his return to work.

Due to all that had happened and because of the unsafe circumstances the Complainant felt he was unable to continue working for the Respondent.

In direct evidence at the hearing, the Complainant stated that although the issue with him not being paid for the hours he worked was sorted out he was told that he had “gone about it the wrong way.” He also stated that he could not remember when the incident with the knife had taken place, but it was probably in the summer of 2018. He also agreed that he had given a statement about the incident to a manger but that it was his view that the matter had not been investigated.

Regarding the allegation of substance abuse the Complainant stated that he was not at all happy with being accused and the OHP who had done the test suggested he should take a week or two off work. It was when he got the call from an acquaintance in the ESB asking about the allegation that he decided to resign.   His name had been tarnished.

In direct evidence the Complainant also stated that his line manager was central to all his problems and had made his life miserable. The Complainant agreed he had met with his line manager and a more senior manager and they had discussed his return to work but to no avail.

In cross examination the Complainant stated that regarding his knowledge of the existence of a Grievance Process, he had attended meetings on such-like a few times, but he had to leave the meetings before they were finished to attend to urgent calls to work. The Complainant stated he did not know a Grievance Process existed; he thought he was meant to bring his problems to his manager. During the cross examination the Complainant stated that he cannot read or write.

In response to a question as to why he did not meet with the HR Manager in March 2019, as she had requested the Complainant stated that if management were not doing their job, why should he go back.  

The Complainant also stated that being accused in the wrong was the final straw. In response to a question regarding getting work after his employment ended with the Respondent the Complainant stated that he “drove around” on the weekend of February 23 & 24th February and managed to secure a new job starting on Monday 25th February 2019.

In closing, the Complainant’s representative stated that it had only become known to the Complainant today (the day of the hearing), that the anonymous source of the allegation of substance abuse came from within the company and that the weight one would attach to an anonymous call and a call from within the company are two very different things.     It was also stated that the allegation was but the straw that had broken the camel’s back, especially when the Complainant knew there was no truth to the allegation at all.

The Complainant’s representative re-iterated that although the Complainant was shown documents about the Grievance Process his reading and writing skills made understanding these documents difficult for him.

In conclusion, the Complainant’s representative pointed out that it was the Complainant’s ongoing difficulties with his line manager, who was not in attendance to give evidence, which had caused the Complainant great difficulty. Having false and malicious allegations made against him, by a person unknown, against whom no action was ever taken, caused the Complainant to lose trust and faith with his employer; he saw no future with the Respondent and had to resign.

The Respondent provided a written submission.

The Respondent submits that there was no dismissal in this case; the Complainant resigned and was not dismissed.

The Respondent submits that the Complainant did not exhaust or even utilise internal complaint procedures prior to resigning, although he had the opportunity to do so.

The Respondent submits that the Complainant’s role was a safety critical role. As part of his role the Complainant drove a 7.5t truck and operated a mini-digger/dumper. The Complainant worked on specific sites and public highways. His role involved excavation work, trenching and ducting, ground levelling etc.

The Respondent submits that in or around January 2019, an allegation was made that the Complainant had been taking drugs.   Due to the high-risk nature of the Respondent’s business and specifically the Complainant’s role, the Respondent decided to place the Complainant on paid suspension pending testing for intoxicants.

At a meeting held on 17th January 2019, the Complainant was informed of his suspension and the requirement to attend an occupational health physician to be tested for intoxicants.

On 18th January 2019, the Respondent submits that the Complainant’s solicitor wrote to the Respondent claiming that the Complainant was suffering from traumatic stress because of the allegations that had been made against him and calling for the suspension to be lifted and for the Complainant to be re-imbrued for financial loss.

The Respondent submits that on 28th January 2019, the Complainant’s solicitor wrote a further letter to the Respondent. In that letter, the Complainant, through his solicitors, stated that he had been working in a very hostile environment since before Christmas and that he was attending his G.P. for treatment and medication. The letter stated that the intolerable working situation caused the Complainant to be absent from work on sick leave and believing that he had been constructively dismissed.

On 28th January 2019, the occupational health physician issued a report which concluded that the Complainant was fit to work in a safety critical role. The Respondent wrote to the Complainant on 29th January 2019, confirming that he was fit to return to work. However, the Complainant advised that he was on sick leave due to work related stress.

On 15th February 2019, the Respondent replied to the solicitor’s letter of 25th January 2019, explaining that the Complainant had not suffered any financial loss as the period of suspension was paid and furthermore, that the Complainant had been advised that he could return to work.

The Respondent submits that the Complainant was on sick leave from 28th January 2019 until 22nd February 2019 and that after that date no further sick certificates were submitted.   The Respondent submits that attempts were made to contact the Complainant, but none were successful.

The Respondent submits that some communication did take place between the parties in March 2019. In one communication the Respondent’s HR Manager, replying to the Complainant, confirmed he had not been dismissed and invited the Complainant to meet with her to discuss the concerns he had raised in an email of 12th March 2019. The Complainant refused to meet with the HR Manager.

In direct evidence at the hearing, Mr A, a manager one above the Complainant’s line manager stated that the Complainant had indeed raised some issues at the suspension meeting, and that if the Complainant had returned to work, he would have investigated them.

The manager who had decided the Complainant should be suspended pending the outcome of the drug test also gave evidence. He stated that safety is of paramount importance and the Complainant worked in a safety critical environment. It was better to have the person against whom such an allegation has been made removed from the environment until the situation was clear. In cross examination, the witness stated that if the same situation arose today, he would do the same thing again, i.e. suspend the individual for his own safety and the safety of his colleagues.

In closing, the Respondent’s representative stated that the Complainant had attended training on the Grievance Process and even though he has stated that he cannot read he was getting legal advice at the time. Notwithstanding this the Complainant did not raise a grievance about his suspension.

The Respondent’s representative also stated that the decision to suspend needed to be done without delay because of the serious safety concerns raised by the allegations. The Complainant could have raised issues with the Respondent before he resigned but he chose not to do so.

In his evidence the Complainant raised a number of issues to support his contention that he had no option other than to resign in February 2019. However, the issue on pay, the incident with the colleague wielding a knife, the denial of a requested vehicle, had all been resolved one way or another and were no longer pertinent to this case by the time the Complainant was suspended in January 2019.

The only matters still extant and the only reasons the Complainant gave for his resignation were because (i) he was suspended pending the outcome of a drugs test and (ii) he felt management allowed information regarding the allegation of his misuse of a substance to spread thus damaging his reputation.

My view is that (i) the Respondent acted reasonably and responsibly in suspending the Complainant on foot of the allegation of substance abuse pending the outcome of a medical test. This was a justified prudent precautionary measure. (ii) The Complainant’s decision to resign rendered it impossible for the Respondent to carry out an investigation into how the allegation made its way to the ears of others outside the company.

Whatever the Complainant’s view on these two issues were, he decided, without raising a grievance, that he had no option other than to resign.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination of a contract of employment. It is, after all, a breach of a legally binding contract.

In the case of an employer wishing to do so, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

It is relatively easy for an employee to terminate their employment by simply resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment and then makes a complaint of constructive unfair dismissal that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p34)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.

In this case the Complainant did put forward that he did not know a Grievance Procedure existed in his employment, let alone how he should initiate it. However, at the time he was suspended, and from then on, the Complainant was receiving advice from a solicitor so the professed lack of knowledge of a Grievance Process becomes irrelevant.

The Complainant’s peremptory resignation without reference to the company procedures is fatal to his case.

The EAT has made it clear in a series of decisions, and followed by the Adjudication Service that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above).

For example, in Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant did not give her employer an opportunity to deal with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated;

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However, for a period of six months she did not attempt to resolve the issue.

In Kirwan v Primark (UD 270/2003) the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures and her case failed.

In this instant case the Complainant never raised a grievance, he never, therefore, gave his employer, the Respondent, the opportunity to investigate, let alone resolve, the matters he says forced him to resign. The Complainant’s failure to avail of internal grievance procedures renders this complaint devoid of merit.

The complaint is not well founded.

Grievance procedures, investigation.