FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DUBLIN LETTINGS & MANAGEMENT (REPRESENTED BY DUBLIN LETTINGS & MANAGEMENT) - AND - WARREN RICHARDS DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision No(s)ADJ-00020553 CA-00027135-001 This is an appeal by Mr Warren Richards (‘the Complainant’) of a decision of an Adjudication Officer (ADJ- 00020553/ CA-00027135-001, dated 27 June 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Complainant submits he was constructively dismissed within the meaning of the 1977 Act. Notice of Appeal was received by the Court on 6 August 2019. The Court heard the appeal in Dublin on 10 September 2020. The Factual Matrix The Complainant was employed by Dublin Lettings and Management Limited (‘the Respondent’) as an Accounts Receivable Clerk from 3 July 2017 until he resigned his employment on 18 February 2019. He submitted that his decision to resign was as a direct consequence of bullying and harassment he sustained during the course of his employment and the Respondent’s failure to fully address that alleged bullying and harassment. The Complainant gave evidence of the following events which he says occurred in the workplace. In or around May 2018, he says he discovered a copy of an email chain that had been left on the office photocopier. In the Complainant’s view, this correspondence made a number of direct references to him and included what appeared to be a record of a discussion amongst senior managers that proposed to administer a final written warning to him. It appears the Complainant did not take any action on foot of discovering this email. On 31 December 2018, the Complainant found a second copy email. This had been placed on his workstation and was a conversation between his line manager (HC) and a colleague (KMcK). The Complainant found the contents of the email chain distressing and upsetting, particularly the reference which named him and suggested “Think he needs the Bullet to F***”. According to the Complainant, the atmosphere in the office changed noticeably during early January 2019 and his relationship with his line manager, HC, deteriorated. He felt that he was being excluded from conversations in the office and talked about behind his back. He believes he heard somebody referring to his sexual orientation, for example, in extremely pejorative terms. The Complainant confronted his manager about this in order to try and resolve the situation. She accepted that inappropriate things had been said and assured him that the behaviour he complained of would cease. Matters didn’t improve according to the Complainant. He, therefore, raised a complaint (verbally and in writing) against his manager to the Respondent’s Financial Controller, Mr Darragh Early on 24 January 2019. On 25 January a meeting took place between the Complainant and the Respondent’s Managing Director, Mr John Hallahan, in relation to the aforementioned letter of complaint with Mr Hallahan assuring him that the Respondent took all such matters seriously and that it would be handled appropriately. The Complainant received a copy of the Respondent’s UK Employee Handbook on 28 January and was advised that he should note that references to UK legislation should be substituted by reference to applicable Irish legislation. Having considered the procedures outlined in the Handbook, the Complainant elected to have his complaint against HC formally investigated. He, therefore, submitted a formal letter outlining his complaint and attaching copies of the offensive emails referred to above. The Complainant met with Mr Hallahan on 4 February 2019 to discuss the proposed formal investigation. He was informed it would be conducted by a General Manager in the UK parent company (Mr Declan Sweeney) who would be accompanied by one of the Irish directors, Mr Tom Ginty. The Complainant was moved to a different team pending the conclusion of the investigation. The Complainant made a request for three days’ annual leave which was granted but was required to prepare a report for his substantive line manager, HC, against whom he had made the complaint, before commencing the leave. This required him to meet face to face with HC. He was uncomfortable doing so but nevertheless complied with HC’s request in this regard. The Complainant met with Mr Sweeney on 12 February 2019 for approximately two hours. Mr Ginty did not attend the meeting to the Complainant’s surprise. On 13 February 2019, the Complainant received a telephone call from Mr Sweeney at 1550 hours. Mr Sweeney advised him that he had completed his investigation, having spoken over the course of the previous day and that day to six other colleagues in the office. Mr Sweeney said he had decided that the complaint of bullying and harassment was not upheld as there was no supporting evidence to substantiate the complaint that the Complainant was deliberately excluded from office conversations or that any conversations where threatening, abusive or insulting language had been used occurred. Mr Sweeney further found that the email of May 2018 seemed to relate the Complainant’s work performance only. Mr Sweeney found that the second email chain cited by the Complainant was unprofessional but amounted to little more than a moan between colleagues. Mr Sweeney, however, also determined that the complaint highlighted certain issues within the office that needed to be addressed. He suggested mediation would be appropriate in this regard. He also advised the Complainant that he could relocate to the Accounts Payable Department if he was uncomfortable working with HC into the future. Finally, Mr Sweeney advised the Complainant of his right to appeal further to Mr Hallahan. On 18 February 2019, the Complainant appealed Mr Sweeney’s findings to Mr Hallahan. He included recordings he had made of conversations that had taken place in the office using his iPad. He submits that these recordings clearly demonstrate the animus that existed against him and the content of the recorded conversations gave him cause to fear for his safety. The Complainant also submitted his resignation on this date. On 19 February 2019, the Complainant received an email from Mr Hallahan acknowledging receipt of his appeal and accepting the Complainant’s resignation with immediate effect. The Complainant exchanged correspondence with Mr Hallahan in relation to the manner in which the appeal should be progressed on 1 March 2019, 14 March 2019, 19 March 2019, 20 March 2019 and 21 March 2019. The Complainant met with Mr Hallahan, with Mr Ginty present as a note-taker on 22 March 2019. The Complainant was accompanied by his partner. On 1 April 2019, the Mr Hallahan wrote to the Complainant outlining his findings on the appeal and asking the Complainant to reconsider his resignation of 18 February 2019. The appeal was not successful. The Complainant replied in writing on 3 April 2019 and declined to retract his resignation. The Complainant’s Submission The Complainant submits that the course of events outlined above taken together constitute a fundamental breach of the Respondent’s duty to maintain trust and confidence which justify his decision to resign his employment. The Respondent’s Submission The Respondent submits that the Complainant has not met the established test for constructive unfair dismissal within the meaning of the Act in circumstances where there the Respondent has neither repudiated his contract of employment nor conducted itself in a significantly unreasonable manner vis-�-vis the Complainant such as to make his continued employment intolerable. The Respondent has cited the following authorities in support of is submission to the Court:Western Excavating (ECC) Ltd v Sharp[1978] IRLR 27;Berber v Dunnes Stores[2009] ELR 61;An Employee v An Employer(UD1421/2008);Daniel O’Gorman v Glen Tyre Company Limited(UD2314/2010) andMurray v Rockabill Shellfish Limited[2012] ELR 331. Reasoning and Decision Having carefully considered the Parties’ submissions and the evidence tendered to it, the Court makes the following findings. The Respondent had in place a written policy that provided for both informal and formal processes to address the Complainant’s allegations of bullying and harassment in the workplace. It is, needless to say, less than ideal that the document presented to the Complainant made reference only to UK legislation and Codes and did not reference relevant Irish legislation. However, this shortcoming did not impact the Complainant’s ability to utilise the procedures therein in any materially detrimental manner, as evidenced by the fact as outlined earlier in this Determination. It appears to the Court that the Complainant’s allegations were comprehensively investigated by Mr Sweeney over a two-day period during which he interviewed all relevant parties. Although, Mr Sweeney did not uphold the Complainant’s allegations, his findings taken as a whole appear to be reasonable and balanced in so far as they recognised that there was a need for further actions, including mediation, improved performance management and the introduction of revised employee policies in order to improve the general working environment in the office. The Complainant also availed himself of an appeal of Mr Sweeney’s findings as provided for in the Respondent’s policy. The Complainant’s decision to resign his employment on the very day that he initiated his appeal of Mr Sweeney’s findings to Mr Hallahan was, in the Court’s view, premature. On the other hand, Mr Hallahan’s direction to the Complainant to cease employment that very day and not work out his notice period is incomprehensible, particularly bearing in mind Mr Hallahan’s subsequent request to the Complainant to reconsider his decision to resign. It would have been much more appropriate for Mr Hallahan to have suggested to the Complainant on 18 February 2019 that he withdraw his resignation pending the conclusion of the appeal process that the Complainant had set in train that very day. The consideration of all constructive unfair dismissal cases centres on the behaviour of the employer in question. This is the nub of the authorities on the matter, including those cited by the Respondent in this appeal. Did the employer substantially repudiate the employee’s contract of employment so as to justify the employee’s resignation? Did the employer conduct itself so unreasonably vis-�-vis the employee so as to make the employee’s situation in the workplace intolerable? On the evidence before it in this case, and for the reasons set out above, the Court does not find that the Complainant has scaled the high bar set by the authorities in constructive dismissal cases. The appeal, therefore, fails and the decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
