ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012876
Parties:
| Complainant | Respondent |
Anonymised Parties | An Electrical Supervisor | An Engineering Company |
Representatives | HRS Consultants | Edward Walsh BL instructed by Noel Smyth & Partners |
Complaints:
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-00016978-001 | 23/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 | CA-00016978-002 | 23/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994 | CA-00016978-003 | 23/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994 | CA-00016978-004 | 23/01/2018 |
Dates of Adjudication Hearing: 23/07/2018 & 05/11/2018
Workplace Relations Commission Adjudication Officer: Aideen Collard
Procedure:
The Complainant referred a complaint of unfair dismissal along with three ancillary complaints to the Workplace Relations Commission (WRC) on 23rd January 2018. In accordance with Section 8 of the Unfair Dismissals Acts 1977-2015 and Section 41 of the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into these complaints and gave the Parties an opportunity to be heard by me and to present any relevant evidence. The Complainant was represented by HRS Consultants whilst the Respondent was represented by Noel Smyth & Partners. The Respondent consented to an amendment of its name to reflect its full legal title. This case was heard over two days on 23rd July 2018 and 5th November 2018. The Parties’ respective positions are summarised hereunder followed by my findings & conclusions and decisions. All evidence, submissions, supporting documentation and case/law presented by both Parties have been taken into consideration. In particular, I have read through the copious background documentation furnished and acknowledge the enormous amount of work undertaken by both Parties herein.
Background:
The Complainant was employed by the Respondent engineering company from 1st November 2016 until his resignation on 4th January 2018 citing constructive dismissal. He referred a complaint of constructive dismissal to the WRC under the Unfair Dismissal Acts 1977-2015. He also referred a complaint that he had not received sufficient breaks under the Organisation of Working Time Act 1997 and two complaints regarding unilateral changes to his contract of employment contrary to the Terms of Employment (Information Act) 1994. He sought compensation in respect of these complaints. The Respondent refuted all of his complaints and sought to have same dismissed.
CA-00016978-001 - Constructive Dismissal under Unfair Dismissals Acts
Summary of Complainant’s Case:
As the onus/burden of proof rests with the Complainant, he proceeded to give his evidence first supplementing detailed written legal submissions. He outlined the circumstances giving rise to his decision to resign from his position with the Respondent and claim constructive dismissal. He had commenced work with the Respondent as an Electrical Supervisor on 1st November 2016 and earned a salary of €65,000 per annum and received a €160 bi-weekly subsistence allowance. His employment was based on a project in Holland, necessitating that he work a demanding schedule whereby he was required to travel to and stay in Holland on a ‘two week on - two week off’ basis. He worked from 7am until 6pm from Monday to Friday of the first week, from 7am until 2.30pm or 3.30pm on Saturday, had Sunday off and worked from 7am until 6pm from Monday to Thursday of the following week. This required him to leave his home at 4.30am on a Monday morning of one week to drive to Dublin Airport, fly out to Amsterdam and then fly back on the Thursday evening of the following week, getting into Dublin at 8.30pm and then having to drive a long distance home.
Within the first few months of his employment, the Complainant experienced issues with his treatment at work by his Line Manager, Mr A and felt that he was being bullied by him. He spoke to Mr A directly hoping that would resolve the issue but the treatment did not stop. On Friday 28th July 2017 upon discovering that no flight had been booked back for him on the following Monday, he made a formal complaint about Mr A by email to one of the Respondent’s Directors, Ms B, and to the HR Manager, Mr C. Examples of the treatment cited included Mr A not signing off on his travel forms but signing off for others, being aggressive towards him and speaking to him in a demeaning manner in front of his colleagues. He stated that he felt that Mr A was trying to get rid of him and referred to the stress and grief he felt as a consequence of his bullying tactics. Ms B replied by email on the same day stating that a flight would be arranged for him for the following Tuesday and she would follow up with Mr C on the following Monday to conduct a thorough investigation into his complaint.
In the interim and without any notice, Mr A informed the Complainant that he had to change his flights so as he could start work at 7am on the Monday and finish at 6pm on the Thursday of the second week. It was not until some weeks later that all of the other supervisors were called to a meeting to inform them of this change and he felt that Mr A was discriminating against him in this respect. The Complainant heard nothing back about his complaint and several more issues regarding Mr A’s treatment of him arose on 31st July 2017. On 1st August 2017, he sent another email to Ms B and Mr C again outlining Mr A’s bullying treatment towards him and enquiring as to whether Mr A had been made aware of his earlier complaint. He also raised the issue of the unilateral change of flight times. Mr C replied by email on the same day confirming that the changes in flights applied to all staff. He also confirmed that he had not raised the Complainant’s grievance with Mr A yet but that he would make him aware of it, get his feedback and once he had received same, would revert with an update. On 3rd August 2017, Mr C emailed the Complainant in relation to some of the issues he had raised. He confirmed that all staff would have to fly to Amsterdam on earlier flights and back to Dublin on later flights. He also said that he had spoken to Mr A who confirmed that there was no intention to treat any staff member differently to the rest of the team, the Complainant’s feedback had been taken on board and it was hoped that everyone could move forward in a positive manner.
The Complainant contended that his difficulties with Mr A continued and on 31st October 2017, he had just returned on site after a period of sick-leave and went to Mr A to ask him what activities he wanted him to do. Instead of welcoming him back or asking how he was, Mr A asked him in a derogatory manner in front of some of his colleagues if he was any good with a paintbrush and could he touch up some panels. Although the Complainant felt that this was a job for a painter, he completed the task as he did with every task he was asked to undertake. A further incident arose in relation to the desk which he had used in the office. Mr A told one of his colleagues to remove the Complainant’s personal belongings for his own use. Although the Complainant had no issue with sharing the desk, he found this offensive. The next morning, Mr A told the Complainant that he had not been missed when he had been out of work on sick-leave and that none of his colleagues had asked about him. The Complainant had replied by saying that he had received several texts and calls from his colleagues whilst he had been out. Mr A then proceeded to tell the Complainant that he had no right to be in the office, that someone else had his space and that he should be on site all of the time. He also informed the Complainant that he was the worst foreman that he had ever had.
On 4th November 2017, the Complainant sent a letter of complaint by email to another Director of the Respondent, Mr D and also forwarded it to Ms B. He referred to the fact that he had previously made a complaint about Mr A but that it had not been taken seriously by HR and he outlined the last episode of bullying treatment. He described feeling demeaned and excluded by Mr A’s treatment as a consequence of which he had suffered stress and sleepless nights and his mental health had suffered. He asked for the matter to be taken seriously and dealt with immediately. The HR Director, Mr C emailed the Complainant acknowledging receipt of the complaint and confirming that he would be supported throughout the investigation. On 9th November 2017, the Complainant reported for work but felt unwell that morning as he had a chest infection. He informed Mr A that he was returning back to his apartment and sought medical attention. He sent an email to Mr C on the same day outlining the position and confirming that he was due to return to Dublin the following evening as he had a hospital appointment scheduled for 14th November 2017 and he was not due back at work again until 15th November 2017. Mr C emailed him noting that he was aware that he was on leave and asking him to arrange a time to discuss his letter of complaint. On 13th November 2017, the Complainant outlined his complaint against Mr A by telephone to Mr C and followed up with an email elaborating on the issues discussed. He remained off sick with a chest infection until 15th November 2017 when he saw his GP who certified him as being on stress-related sick leave. On 16th November 2017, Mr C telephoned him to confirm that an investigation meeting was due to take place the following week and that one of his colleagues was willing to make a witness statement. Mr C emailed him a copy of the colleague’s statement later that day but it was withdrawn and replaced with another. Following receipt, the Complainant emailed Mr C back asking him to speak to a number of other colleagues who had witnessed Mr A’s treatment towards him. He also queried the unilateral change in flights again. On 17th November 2017, the Complainant emailed Mr C with a list of questions seeking information about the meeting which was scheduled for 20th November 2017 in the Irish HO. Amongst the questions, he asked whether it was a formal meeting and whether he could have representation. Mr C responded by stating that the meeting would be an attempt on his part to move the process forward and he would answer his questions on the morning. The meeting proceeded between two different rooms with Mr A in one room and the Complainant in another and Mr C running up and down the stairs between the two parties at different intervals. The Complainant recorded the meeting on his personal mobile phone with Mr C’s consent. As per transcript furnished, at the outset, Mr C asked several times what he wanted from the investigation and he replied that the investigation process would determine the outcome. Mr C reported back to the Complainant that Mr A had said that he could have handled matters better and had not intended to cause offence. The Complainant confirmed that he would not be returning to work pending the outcome of the investigation. He also brought his medical cert recording that he was suffering from occupational stress to Mr C’s attention and sought support and advice as per the company policy. Following the meeting, Mr A submitted a statement to Mr C which Mr C copied to the Complainant and informed him that he should have his final investigation report completed by the end of that week. On 24th November 2017, the Complainant received the investigation report from Mr C by email. He was devastated by the findings which did not uphold his complaint or identify Mr A’s behaviour as bullying and were reached without speaking to the additional witnesses suggested.
At this point, the Complainant lost all trust in the Respondent and sought independent advice from HRS Consultants. On 4th December 2017, HRS Consultants sent a letter to Mr C highlighting how disappointed the Complainant was with the investigation which was carried out in an extraordinary fashion and outlining the various deficiencies in the investigation process. It further asked the Respondent to contact them by 14th December 2017 to try to resolve matters locally. On 14th December 2017, HRS Consultants received a letter from Noel Smyth & Partners, Solicitors acting on behalf of the Respondent. Their letter claimed that a fair and comprehensive investigation had taken place. It also indicated that the Respondent was willing to engage in a third-party mediation process. HRS Consultants replied by letter dated 4th January 2018 stating that they did not agree that a fair and comprehensive investigation into the matter had taken place and that if the Complainant had felt that mediation was an option, he would have considered raising his issues with his employer first. However, his treatment by the Respondent up to that point had led him to believe that mediation was not an option and that for his issues to be investigated and addressed seriously he needed to follow the formal route. Having made a formal complaint, he was devastated by the Respondent’s findings, all trust had broken down and for the sake of his health he had to resign. A letter of resignation from the Complainant reflecting this position was enclosed. By letter dated 22nd January 2018, the Respondent’s Solicitors replied confirming that the Respondent was surprised and disappointed that the Complainant had not chosen to engage in third-party mediation. It also offered him an opportunity to suggest an alternative resolution process and confirmed that the Respondent would treat his resignation as being of no effect pending a resolution of the matter as proposed. By letter dated 23rd January 2018, HRS Consultants replied: “As we explained in our letter to the company, the company had more than one opportunity to investigate our client’s complaints. Mediation was attempted. Mediation is an option to be considered at the point of making a complaint. The company established there was no substance in our client’s complaint during a meeting they had by running up and down the stairs in the middle of the meeting. It is difficult to see how our client could ever trust the company again even if they had not allowed his health to be damaged by their failure to meet their duty of care to our client. Our client loved his job but unfortunately due to your client’s failures there is no way back for him now. Accordingly, on behalf of our client, we will be submitting a complaint against the company under the Unfair Dismissals Act for constructive dismissal.” Accordingly, on the same date, HRS Consultants referred this complaint to the WRC along with the three ancillary complaints addressed hereunder. On 25th January 2018, HRS Consultants forwarded a data protection request to the Respondent on behalf of the Complainant. On 1st February 2018, the Respondent’s Solicitors wrote to HRS Consultants asking why the Complainant had not considered the offer of independent third-party mediation. The letter also confirmed that the Respondent did not feel that it had breached the Complainant’s contract. This was followed with two additional letters dated 21st February 2018, the first enclosing the Complainant’s data and the second acknowledging receipt of these complaints to the WRC.
The Complainant also confirmed that he had attended for counselling and submitted a Report dated 15th October 2018 outlining the effect of his workplace bullying on (1) his mental health and well-being, (2) his psychological disposition, (3) his relationships with his family and friends and (4) his future career. The Report outlined his career achievements and prior unbroken work history of enjoying good working relationships with his co-workers and management. It outlined the derisory and derogatory behaviour he reported being subject to under Mr A’s management which had left him feeling isolated and suffering in silence. As a consequence, he suffered loss of self-confidence, self-esteem and withdrawal from his family and friends. He was also unable to sleep properly with stress and worry and had to go on sick leave for months. His confidence and ability to trust in a good working relationship had been damaged. It was the Counsellor’s professional opinion that in all probability he will have difficulty holding onto and maintaining his previously held supervisory roles and may have to accept a lesser work position due to work-related stress. A GP’s Report dated 30th October 2018 confirmed his sick leave, medication and adverse effects of his workplace situation.
The Complainant also outlined his financial losses as a consequence. He had remained on sick-leave until 20th February 2018 and was in receipt of Illness Allowance for this period. Thereafter, he worked on several short-term contracts giving rise to a shortfall in income (detailed in a spreadsheet furnished) before availing of a new and similar position in Ireland which does not require travelling abroad. He was earning a salary of €46,000 per annum, giving rise to a loss of €19,000 per annum. He sought compensation for existing and future losses. Mitigation was not substantially in issue.
Under questioning, the Complainant accepted that his salary of €65,000 was higher than the industry average to reflect the fact that he had to travel abroad and that he had also had his expenses covered and received subsistence of circa €8,000 per annum plus a laptop and phone. It was further put to him that the work structure had been at his request and was less onerous than the industry standard. He had also unilaterally had the flight times changed to suit him until an audit resulted in stricter enforcement of set times. Counsel also put the Respondent’s version of each incident of alleged bullying against Mr A to him in detail contending that it was unsubstantiated and in fact there had been issues with his performance as evidenced by an internal email furnished. It was further contended that Mr A had supported him in relation to his work and a difficult personal issue. It was further put to him that his complaints against Mr A had been addressed expeditiously and reasonably and there had been nothing improper about the meeting. Finally, it was put to him that if he was unhappy with the investigation under the Bullying Policy, he had recourse to the Grievance Procedure and had also rejected repeated offers of third-party mediation before resigning. The Complainant replied that too much harm had been done at that stage and all trust had broken down.
The Complainant’s Representative submitted that at the point in which the Complainant resigned, he was entitled to consider himself constructively dismissed owing to the appalling way in which he had been treated by the Respondent. In particular, it was contended that the Respondent had failed to respond to his complaints of bullying leading to a consequent breakdown in trust. Criticisms were made of the investigation process including Mr C’s refusal to interview all of the witnesses put forward by the Complainant and the extraordinary manner in which the meeting of 20th November 2017 had been conducted. In this respect, reliance was placed upon numerous authorities where complaints of constructive dismissal were upheld including Schonfield -v- Westwood Club Clontarf Ltd UD1013/2013, Beglan -v- Scanomat Ireland Ltd UD688/2012, Glica -v- The Bagel Bar Franchise Co. Ltd UD1217/2013, Allen -v- Independent Newspapers (2002) ELR 203, Gallery -v- Blarney Woollen Mills (1990) ELR 143 and Jay Porter -v- Atlantic Home Care Limited UD971/2005.
Summary of Respondent’s Case:
Detailed written submissions were supplemented with oral evidence from witnesses on behalf of the Respondent. The specialist nature of the Respondent’s work which included undertaking bespoke projects abroad and were deadline orientated was outlined. At the time of the Complainant’s employment as an Electrical Supervisor, it was engaged in a contract in Amsterdam. Save than the precise working hours cited, the Complainant’s employment details as outlined above were not in dispute. It was also confirmed that he was in receipt of a higher salary than the industry average for his position owing to the fact that he had to travel abroad and that his expenses were also covered.
The HR Manager, Mr C, gave evidence in relation to his handling of the Complainant’s complaints of bullying against Mr A. He confirmed his extensive experience in HR. With reference to records furnished, he outlined the Respondent’s position regarding flight times. He confirmed that a number of employees including the Complainant had been booking earlier flights to Dublin and following a review, normal times were enforced for everyone across the board unless they had a particular reason to take an earlier flight. Following receipt of the Complainant’s emailed complaint of 28th July 2017, an internal investigation was carried out whereby Mr C spoke with the parties concerned and sought to regularise matters on an informal level without needlessly escalating matters. Thereafter, there had been no further correspondence or reports from the Complainant for some months.
However, when the Complainant’s subsequent complaint of bullying against Mr A was received on 4th November 2017 in the form of a letter, it was passed onto Mr C to be addressed on a more formal basis. Mr C undertook a detailed investigation pursuant to the Respondent’s Bullying Policy and a final report was delivered on 24th November 2017. For the purposes of same, Mr C interviewed the Complainant and Mr A on 13th November 2017 informing them that he wanted to execute a fair and balanced investigation to all concerned. To that end they were also informed that all matters and witnesses which they wanted the investigation to encompass should be disclosed before any witness statement from either side was taken in order to permit the investigation to commence in earnest. Mr C was informed by the Complainant that he only had one witness that he wanted involved and he provided his name. Mr C interviewed the named witness on 15th November 2017 and circulated his statement to all parties. The second version sent to the Complainant only made typographical changes. Following receipt of the statement which was neutral in respect of the allegations, the Complainant asked Mr C to interview additional witnesses. Mr C explained that he did not interview any further witnesses proffered by either side following his initial investigation by reason of the investigation having begun and witness statements circulated. He also confirmed that he had convened the meeting of 20th November 2017 for the purposes of ensuring that a professional working relationship could be maintained over the course of the investigation process and had kept the parties in different rooms so as not to inflame the situation. He had also repeatedly asked the Complainant for a wish-list as to what he wanted such as a move to a different section so that he could reflect on his views. However, the Complainant just wanted the investigation to proceed.
In his report of 24th November 2017, Mr C concluded that the matters raised/complained of were serious in nature; that both parties had very different views of what had occurred regarding each instance of alleged bullying; that Mr A’s actions in respect of the Complainant’s specific allegations were professional in their nature and there was only one particular incident on 1st November 2017 which Mr A should have handled better; the fact that the office was short on supply of desk space due to a large demand requiring a ‘hot desk’ system to be employed was a by-product of a busy working environment; there was no evidence of “repeated inappropriate behaviour” on Mr A’s part constituting bullying but one-to-one counselling in the communications area was recommended; and finally, any specialist support that the Complainant might require should be afforded to him. The Complainant’s Representative put the contended shortcomings in the investigation process to Mr C. He maintained his position that he had acted properly and no further material evidence was elicited.
Mr C confirmed that the Complainant never returned to work after receipt of the report and nor did he appeal and/or avail of the Grievance Procedure as provided. There was extensive engagement between the Complainant and his Representative, HRS Consultants, and the Respondent and Noel Smyth & Partners, Solicitors on its behalf with a view to facilitating his return to work. Reliance was placed upon the ensuing correspondence outlined above including the Respondent’s Solicitors’ proposition of third-party mediation between the parties to find a solution; the outright refusal of mediation and attached letter of resignation; the repeated proposition of the Complainant’s reinstatement and/or mediation or any “suitable alternative” that the Complainant and/or his Representative wanted to propose; the second refusal of mediation and reference of this complaint to the WRC and subsequent exchange. The Complainant had received categorical assurances that his issues would be addressed as part of his return to work. It was reiterated that his job was still open for him and that the Respondent would do everything to assist him going forward as an employee of the Respondent. In summary, it was submitted that in the period after the investigation into the Complainant’s bullying complaint, the Respondent sought to regularise matters and bring a satisfactory solution to the situation but all of its proposals were declined by the Complainant.
Mr A was in attendance on both hearing days and was most anxious to vindicate his position and give evidence of the events giving rise to the Complainant’s allegations against him from his perspective. I explained that my role was not to reinvestigate the complaints made against him at this stage but rather to assess the reasonableness of the Respondent’s response to same. However, in the interests of affording everyone a full and fair hearing, I allowed and noted the evidence.
On behalf of the Respondent, it was submitted that the Complainant was not entitled to resign from his employment and claim constructive dismissal under Section 8 of the Unfair Dismissals Act 1977. An employee who asserts that he was entitled to constructively dismiss himself faces a high bar before the WRC and/or any other adjudication body. Unlike other dismissals, the onus/burden of proof is placed upon an employee claiming constructive dismissal to prove that their resignation was justified and all alternative avenues have been exhausted. The contract and reasonableness tests used to assess constructive dismissal complaints were outlined with reference to the case law setting out same including the leading case of Western Excavating (ECC) Ltd -v- Sharpe (1978) ICR 221 along with Brady -v- Newman UD330/1979, O’Leary -v- Cranehire Ltd UD167/1979, Cosgrave -v- Kavanagh Meat Products Ltd (1988) UD6/1988, Wetherall (Bond St. W1) -v- Lynn (1978) IR 205 and Clifford -v- Maritrade Ltd (2000) UD27/2000. Particular reliance was placed upon Barry -v- Quinn Insurance UD1775/2010 which closely replicated the instant case, wherein the EAT had held that it was unreasonable for the claimant to resign in circumstances where she did not appeal the outcome of the company’s decision in relation to her complaint of bullying and harassment notwithstanding a finding that she had been subject to unacceptable behaviour and noting that: “Except in very limited situations an employee must exhaust all avenues for dealing with his/her grievances before resigning. Therefore, the Claimant’s claim under the Unfair Dismissals Acts 1977 to 2007 fails.”
It was submitted that the Respondent had acted in a fair and reasonable manner towards the Complainant at all times and dealt with his complaints against Mr A through a fair and impartial process. The Complainant did not appeal the investigation report or engage constructively after the investigation report issued but rather chose to communicate through a third party, HRS Consultants. The Respondent had engaged with the Complainant and his Representative with a view to attempting to facilitate his return to work and his position had remained open and available to him. However, despite initially seeking to resolve matters locally, HRS Consultants made it clear that it was not going to entertain any mediation or alternative resolution outside of the WRC. It was submitted that the Complainant and his Representative were incorrect in their view that mediation was not applicable at that stage as it can be appropriately used at any juncture of a dispute. Overall, it was submitted that the Complainant had acted hastily and prematurely by failing to appeal the investigation decision and/or avail of the Grievance Procedure, refusing mediation on any terms and offering a letter of resignation immediately post-Christmas holiday break 2017/18. There was nothing more that the Respondent could have reasonably done in the circumstances. The irrefutable conclusion had therefore been reached that the Complainant had never intended to return to work and his resignation was of his own choosing in an attempt to secure a settlement agreement. In the circumstances, the Respondent sought to have this complaint dismissed as being unfounded.
Findings and Conclusions:
For a successful complaint of constructive dismissal under Section 8 of the Unfair Dismissals Act 1977, the Complainant must satisfy the definition in Section 1(b) which provides: “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 Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the Labour Court elucidated the ‘contract’ and ‘reasonableness’ tests used either individually or together to assess whether an employee has been constructively dismissed. The Complainant herein is primarily relying upon the reasonableness test which assesses the conduct of the employer and whether it conducts “…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.” The Supreme Court in Berber -v- Dunnes Stores [2009] ELR 61 requires an objective assessment as follows: “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.” Unlike complaints of unfair dismissal, the definition also firmly places the onus/burden of proof on the employee to show that the resignation was justified. Integral to this test, the case law overwhelmingly confirms that save for exceptional situations, an employee must have exhausted all alternative avenues before tendering a resignation. Whilst the caselaw cited elicits applicable legal principles, each case tends to turn on its own particular facts.
In the instant case, the main issue for determination is whether the Respondent’s conduct towards the Complainant and in particular, the manner in which it handled his complaints against his Line Manager, Mr A was so unreasonable as to justify his resignation without recourse to the alternative avenues offered. Whilst the facts are not substantially in issue, the Parties clearly have diametrically opposing views regarding Mr A’s treatment of the Complainant and the reasonableness of the Respondent’s response. I must therefore consider the factual matrix presented in light of the aforesaid law to determinewhether or not the Complainant is entitled to succeed in this complaint.
Firstly, and as pointed out to the Parties at the hearing, my role is not to undertake a reinvestigation into the complaints of alleged bullying by the Complainant against Mr A (which would entail hearing from all the witnesses concerned, being outside the practical scope of this hearing) but rather to assess the reasonableness of the Respondent’s response to same. There is no dispute that the alleged bullying behaviour complained of was of a serious nature. In this respect, I find that the Complainant was justified in regarding the investigation process into his complaint/s as falling short of what might reasonably be expected from the Respondent. Whilst I have no doubt that the HR Director, Mr C was well-intentioned and wanted to resolve matters expeditiously, the other witnesses referred by the Complainant should have properly been interviewed where findings of fact regarding Mr A’s conduct were being made. A certain degree of flexibility is required to ensure a robust workplace investigation not least so that an employee can be confident that his/her complaints have been taken seriously and interviewing the two additional witnesses would not have unduly delayed the process. Whilst the purpose of the meeting of 20th November 2017 was also well-intentioned, the Complainant should have been given more information about the format and had his questions answered in advance. If he had, perhaps it would have been more constructive.
Whilst I accept the Complainant’s evidence that after receipt of the investigation report, he had lost trust in the Respondent’s ability to address his complaints, I must objectively consider whether the Respondent’s conduct had reached such a level that he was justified in deeming himself constructively dismissed at that stage. Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981. In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’” Given the manner in which his bullying complaint was handled, the Complainant’s lack of faith in any appeal/recourse via the Grievance Procedure is somewhat understandable. However, once he had engaged Representation triggering the Respondent to avail of legal representation and offer mediation in response to his Representative’s request to try and resolve matters locally, I am of the view that he should have reasonably followed through. It appears that he had a change of mind over the Christmas period and rejected this along with a further invitation to suggest a suitable alternative means of resolution. I have considered both Parties’ submissions in this respect and do not accept the contention on behalf of the Complainant that it was too late for third-party mediation based upon his prior experience and/or the meeting of 20th November 2017. What was being proposed was completely different with the appointment of an independent person (third-party) to mediate. Mediation at this stage would have allowed scope for possible solutions to be aired such as the Complainant working away from Mr A, being the source of his difficulties. Overall, I am of the view that having availed of able representation and advice, he should have at least explored possible solutions and afforded the Respondent a final opportunity to resolve his difficulties before tendering his resignation. Therefore, and whilst sympathising with the Complainant’s position which I have no doubt was genuinely held, I find that his resignation was precipitous in the particular circumstances and he has not discharged the requisite burden of proof required to substantiate a complaint of constructive dismissal.
Decision:
Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to a complaint of constructive dismissal in accordance with the relevant provisions. Based upon the aforesaid reasoning, I find this complaint not to be well-founded and accordingly, dismiss same.
CA-00016978-002 – None or Insufficient Rest Periods contrary to the Organisation of Working Time Act 1997
Summary of Complainant’s Case:
The Complainant contended that he had not been afforded breaks or sufficient breaks during his employment with the Respondent contrary to Section 12 of the Organisation of Working Time Act 1997 and sought compensation in respect of same. Because there had to be constant supervision, he had to get another supervisor to relieve him before he could take his breaks. Sometimes he could not take his breaks when they were unavailable and other times, he would not get his lunch break until 3-4pm. He had raised the issue of breaks with Mr A and had been told to organise them himself. When asked to give specific examples, he said that during a busy period in Summer 2017, there were occasions when he did not get his proper breaks. Under questioning, it was put to him that as per his contract he was required to notify his line manager when he did not receive his breaks. He said that he had raised the issue verbally but accepted that he had not raised a grievance.
Summary of Respondent’s Case:
On behalf of the Respondent, the HR Manager, Mr C, confirmed that the Complainant had never raised any issue regarding breaks with any relevant person previously as required under his employment contract and referral of this complaint to the WRC has come as a surprise. It was contended that this complaint had been advanced on an ad-hoc basis and somewhat prejudicially in circumstances where it has not been particularised or ventilated in any way with the Respondent or its management to date. Reliance was placed upon Bryszewski -v- Fitzpatrick (2014) IEHC 263 to support the proposition that it has not been properly particularised to enable the Respondent to address same and in the all the circumstances, should fail. No records were furnished by the Respondent showing compliance with Section 12 of the Organisation of Working Time Act 1997.
Findings and Conclusions:
It is necessary to apply the evidence adduced to the applicable statutory provisions. In relation to statutory breaks, Section 12(1) of the Organisation of Working Time Act 1997 provides:
“An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1) (Subsection 3 omitted as irrelevant to the instant complaint). (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).” Section 25(1) of the Act requires employers to retain records showing compliance with the Act and Section 25(4) provides that where an employer fails to keep such records, the onus of proving compliance in relation to a complaint of non-compliance before the WRC or Labour Court lies with the employer. Regardless of contractual provisions requiring an employee to flag untaken breaks, the onus of ensuring compliance rests with an employer. In Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311, the Labour Court set out how the burden of proof should operate in practice. As a matter of basic fairness, a claimant is required to adduce such evidence as is available to support a stateable case of non-compliance with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet before Section 25(1) comes into play. Whilst I find the Complainant’s evidence to be quite vague in this respect, I am satisfied on the balance of probabilities (particularly as it was the Respondent’s position that oversights arose during busy periods) that there were occasions when work was too busy for him to take a break and/or he did not have a break until later. As the Respondent has not provided any records showing compliance with Section 12 of the Organisation of Working Time Act 1997, I am satisfied that this complaint is well-founded. However, I regard this breach to be on the lower end of the scale in circumstances where the Complainant did not regard the issue as being serious enough to formally raise during his employment at a time when he was raising other issues.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 and Section 27(3) of the Organisation of Working Time Act 1997. Based upon the aforesaid, I find this complaint to be well-founded and direct the Respondent to pay the Complainant the sum of €750 as being just and equitable in all the circumstances.
CA-00016978-003 – Not notified in writing of a change to terms of employment contrary to the Terms of Employment (Information) Act 1994
Summary of Complainant’s Case:
The Complainant contended that at some stage during the course of his employment, the Respondent had unilaterally changed his start/finish and corresponding flight times without consultation or notification in writing contrary to the Terms of Employment (Information) Act 1994. These changes meant that the he had to leave home at 2.30am on the Monday morning to drive to Dublin Airport to get an earlier flight and upon his arrival in Amsterdam, go straight to the site after very little sleep and a long drive. He also had to get an 8.35pm flight instead of a 6.30pm flight from Amsterdam back to Dublin on the Thursday of the following week with the consequence that he did not get home until 1am on the Friday morning. This resulted in the Complainant having less time at home and significantly affected his work-life balance. He sought compensation in respect of same.
Summary of Respondent’s Case:
Mr C outlined the position on behalf of the Respondent with reference to flight records, confirming that the flight times complained about were the ones originally set but that employees including the Complainant had unilaterally submitted earlier/later departure times thereby substantially reducing the working week. This abuse of the system had gone unchecked for a period until it became so prevalent that a manager was assigned to review and address the issue. He had called a meeting of all the employees informing them that the flight time system would now be monitored more rigorously and they would be allocated the standard inward/outward flight times save where there was an appropriate request. The ensuing enforcement of set flight times applied to all employees. It was therefore somewhat disingenuous for the Complainant to rely on an oversight to seek an award. It was further submitted that his contract made provision for flexibility regarding working hours and he was more than adequately compensated. Without prejudice, it was submitted that this complaint falls in part or entirely outside of the requisite six month period and is therefore time-barred.
Findings and Conclusions:
The Terms of Employment (Information) Act 1994 sets out the minimum statutory requirements for the provision of information by an employer to an employee pertaining to an employment contract. As applicable at the material time, Section 3(1) provides that an employer shall provide an employee with a statement in writing containing the particulars of the employee’s employment as set out therein within two months of the commencement of employment. In relation to the instant complaint, Section 3(1)(i) requires: “(i) any terms or conditions relating to hours of work (including overtime),”. Section 5 of the Act requires an employer to notify the employee in writing of the nature and date of any change to these particulars within one month after the change takes effect.
The Complainant contends that he was not notified in writing of a change to his start/finish work times and/or corresponding flight times. In this respect, I note that his contract provided that his normal hours of work were 39 hours per week from 9am-6pm Monday to Thursday and from 9am-5pm on Friday with lunch from 1-2pm daily with provision for change by agreement. Rather than a unilateral change in start/finish times previously notified to the Complainant, it appears that the original contract did not set out the terms and conditions reflecting the hours of work for the ‘two-weeks on - two weeks off’ arrangement operated in practice and was in breach of the Act in this respect. I am satisfied that this led to the uncertain situation that the Complainant found himself in when the Respondent laterally sought to enforce different flight times. As there is no evidence that he was required to work more than his contracted hours averaged over the requisite four month period, I regard this breach of the Act as falling towards the lower end of the scale. I also consider this to be an ongoing breach of the Act and am guided by Labour Court jurisprudence in this respect.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 and Section 7 of the Terms of Employment (Information) Act 1994. Based upon the aforesaid, I find this complaint well-founded and direct the Respondent to pay the Complainant €500 in compensation as being just and equitable in all the circumstances.
CA-00016978-004 – Not notified in writing of a change to terms of employment contrary to the Terms of Employment (Information) Act 1994
Summary of Complainant’s Case:
The Complainant contended that for the first five months or so of his employment, the Respondent paid him mileage expenses at 37 cent per kilometre for having to drive to and from Dublin Airport on the days that he was travelling to and from Holland as agreed in his contract. However, the Respondent had unilaterally stopped paying him this allowance without consultation or notification of this change in writing, contrary to Section 5 of the Terms of Employment (Information) Act 1994. When he questioned the Accounts Department about this shortfall by telephone, he was informed that the Respondent was not paying this anymore as confirmed by email furnished at the hearing.
Summary of Respondent’s Case:
On behalf of the Respondent, the HR Manager Mr C, confirmed that the mileage allowance within the Complainant’s contract was in respect of “mileage to carry out your duties” for the purposes of executing work rather than getting to/from work. This was reflected in an email dated 10th October 2016 from the Managing Director to the Employment Agency during the recruitment process. However, the Complainant had submitted unauthorised mileage expenses from the first month of his employment which went unnoticed and were signed off on due to a very busy period. When the discrepancy was identified, it was decided to treat the matter as an oversight and leave it at that. Again, it was questionable that the Complainant would rely on such an oversight to seek an award in respect of same. Without prejudice to the foregoing, it was also submitted that this complaint falls in part or entirely outside of the requisite six month period and is therefore time-barred.
Findings and Conclusions:
Even construing Section 3(1)(g) pertaining to remuneration in its widest possible terms, Section 3(1) of the Terms of Employment (Information) Act 1994 does not include expenses as one of the exhaustive list of particulars required to be furnished in writing by an employer. Accordingly, there is no corresponding obligation under Section 5 of the Act for an employer to notify an employee of any change. I therefore find that this complaint concerning a mileage allowance to be misconceived.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the requisite statutory provisions. Based upon the aforesaid reasoning, I find this complaint not to be well-founded and accordingly dismiss same.
Overall Award:
For the avoidance of doubt, the overall award of compensation to the Complaint herein is €1,250.
Dated: 02/09/2019
Workplace Relations Commission Adjudication Officer: Aideen Collard
Key Words: Unfair Dismissals Acts - Constructive Dismissal - exhaustion of alternative avenues – Sections 12 & 25 of the Organisation of Working Time Act 1997 - no breaks - burden of proof – Sections 3 & 5 of the Terms of Employment (Information) Act 1994 - not notified of changes to terms