Complainant

Respondent

Anonymised Parties

A Commercial Assistant

A Travel Agency

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-00022440-001

05/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00022440-002

05/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00022440-003

05/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00022440-004

05/10/2018

The complainant joined the Dublin office of the respondent’s travel company on January 28th 2013 in the role of a commercial assistant. He was involved in product pricing and planning and he had sales, administration and customer services responsibilities. In November 2017, due to his absence, the respondent initiated an investigation into his capability to attend work regularly. This investigation was carried out in accordance with what was referred to by the respondent as their “capability policy,” which is the equivalent to an attendance management policy in most companies. The complainant found this investigation to be flawed and unfair. On June 21st 2018, while he was at work, he became sick due at work due to stress and he remained out of work until he resigned on August 29th 2018. On the form he submitted to the WRC outlining his complaint, he said that he had no option but to resign because he faced further disciplinary action when he returned to work and he had no confidence that he would be treated fairly by his employer.

In addition to his claim of constructive dismissal, the complainant alleges that he was discriminated against because of his gender, family status, his religion, his age and his disability, which he said was asthma and stress. He claims that he was victimised and harassed by his employer and that he was not provided with reasonable accommodation for his disability.

The complainant further alleges that he was not paid the correct amount of pay in lieu of notice.   He also claims that the respondent breached his rights under the Parental Leave Act because they failed to allow him to change the dates of his approved parental leave.

Chronology of Events Leading to the Complainant’s Resignation

August 18th 2016

On August 8th 2016, the day after a team-building event, the complainant was late for work. He claims that his sleep was disturbed because he received a WhatsApp message from his line manager (“LM”) telling him to be first into the office the next day.   Following his late arrival, he said that LM called him into a meeting room and stood over him and in a raised voice, said, “your f…ing attitude stinks.” He said that he was upset by the way he was spoken to by LM and he attempted to raise a grievance with the Commercial Manager, (“CM”). At a meeting on August 23rd 2016, the complainant said that CM advised him not to pursue his grievance because LM would just get a slap on the wrist” and he, the complainant, could be “labelled as a trouble-maker.”

May 2017

CM went on maternity leave in April 2017 and in May, the complainant spoke to the head of the Irish business (“HIB”). HIB documented everything and the complainant felt that she listened to the issues he was concerned about. He said that she advised him that she would “fix my problems.” However, at the same time, the complainant said that his health suffered because he was trying to deal with everything and not be a trouble-maker, and he was emotionally disturbed.

November 7th and 8th 2017

The complainant was absent from work on these two days due to a chest infection. At the hearing, the complainant said that he suffers from asthma and that this makes him vulnerable to chest infections. This was the fourth occasion that he was absent since June 21st 2017.

November 24th 2017

The company’s attendance policy provides that if an employee is absent on more than three occasions or for more than 10 days in a rolling six-month period, they must explain their absence at an attendance review meeting. At a meeting on November 24th, it was agreed that the complainant would not be called to an attendance review, but that he would be examined by the company’s occupational health consultant (“OHC”). It was also agreed that, to alleviate his concerns about how the workplace was impacting on his health, a heater would be purchased for underneath his desk, the storage heaters would be adjusted to prevent the office being cold on Monday mornings and he could have an eyesight test in accordance with the company’s policy.

By the date of this meeting, the complainant had only one day of annual leave remaining in the leave year 2017 – 2018 and HIB agreed that he could take one day of unpaid leave each month up to the end of March 2018.

December 8th 2017

Following a telephone assessment, the OHC said that the complainant reported that he was suffering from “psychological upset as a result of perceived workplace stressors.” To resolve the problems he was experiencing at work, the consultant recommended that the company arrange for mediation between management and the complainant.

December 22nd 2017

HIB phoned the complainant to review the OHC’s report and to discuss how to move forward. The complainant said that no further instances had arisen since May of 2016, but that people were commenting on the office being too cold or too hot, which led him to believe that his confidence had been breached regarding his conversations with HIB about the office temperature. The complainant said that he was finding it difficult to get over what happened in August 2016, when he claimed that he was challenged aggressively by LM for being 15 minutes late. He felt that this issue wasn’t resolved when CM advised him not to raise a grievance because he might be seen to be a trouble-maker. He was concerned that when CM comes back from maternity leave, other issues might arise. The complainant said that he found it difficult to stop thinking about the incidents of the past.

In an email on the same day (December 22nd 2017) HIB gave the complainant several options to consider, with a view to resolving the emotional problems he was experiencing at work. One of these options included mediation with CM and LM.

January 15th 2018

At a meeting with HIB, the complainant confirmed that he didn’t want to pursue a grievance, but that he would engage with her in an informal approach to resolving his issues at work. HIB agreed to arrange for training for managers in managing staff and giving feedback. She committed to ensuring that customer experience research trips were managed consistently and fairly. She said that she would speak to CM before she returned from maternity leave and arrange mediation between her and the complainant. HIB also said she would investigate what “over-achieving” looks like from a performance perspective.

The email summary of this meeting on January 15th also notes that options regarding moves to other business areas were discussed and the complainant also asked if he could be made redundant. This was refused because the business was in a growth phase and his job was not redundant.

January 23rd 2018

In a response to HIB’s email, the complainant reiterated his concern about how the August 2016 incident had been dealt with, saying that CM “chose a side and stuck to it, leaving me to tough it out basically.”  

March 16th and 21st 2018

On February 26th, the complainant was out sick, the fourth occasion on which he was absent due to illness in the previous six months. He was requested to attend what was referred to in the company’s attendance management policy as a “capability meeting.” He was informed that he could be accompanied at the meeting by a colleague or a trade union official. The complainant asked if he could be represented by Ms Fitzsimons Belgaid, who represented him at the hearing of this complaint, and who is his mother.   The complainant was permitted to have Ms Fitzsimons Belgaid in attendance in the office when the meeting was taking place, so that he could consult her; however, she was not permitted to attend the meeting itself. The meeting scheduled for March 16th was adjourned and re-convened on March 21st.

The respondent’s submission shows that the purpose of the meeting was to discuss the complainant’s absences which were in breach of the company’s attendance policy. The submission notes that the following issues were discussed:

1 The complainant raised an issue concerning the confidentiality of his assessment with the OHC.

2 The complainant said that he was discriminated against on the ground of his age, because the company referred to his chosen representative as his mother.

3 The complainant claimed that there was an ongoing conspiracy against him since 2016. He offered no explanation for his absences but said that he believed that the outcome of the capability meeting was pre-determined.

4 The complainant looked for clarity regarding the rolling six-month period during which there was concern about his attendance. He was also concerned about what he considered were errors in the calculation of his absences.

Following the meeting, the complainant raised six issues that he wanted the management to note:

1 A breach of his rights to data protection;

2 He was not given enough time or information to support his evidence at the meeting;

3 He claimed that the company’s policies were not followed fairly;

4 He claimed that he was not offered representation;

5 He raised a concern about the differentiation between sick pay and paid leave;

6 He said that he intended to raise a grievance about victimisation, harassment, being bullied, treated less favourably than others and “the overwhelming amount of times my data and confidentiality has been breached.”

At the re-convened meeting on March 21st, the details of the complainant’s absences between June and November 2017 were clarified. The complainant alleged that the Commercial Manager who conducted the capability hearing (“CM2”) pressurised him into revealing that Ms Fitzsimons Belgaid was his mother and that, during a conversation with him, she prevented him from leaving a room, causing him to feel trapped. He also claimed that CM2 breached his confidentiality and that she unilaterally decided not to allow Ms Fitzsimons Belgaid to represent him at the capability meeting.

March 23rd 2018

In accordance with the term used in the attendance policy, the complainant was issued with a “first written caution” concerning his absences. On March 30th, he appealed against this warning.

April 5th 2018

The complainant was out sick.

April 9th 2018

The complainant was absent again on April 5th and CM2 wrote to him to inform him that, if this was categorised as a sickness absence, there would be a further escalation of the company’s response to his attendance. On the same day, the complainant submitted a set of grievances, setting out complaints about he was treated at work from August 2016. A copy of the letter in which he set out his complaints was submitted in evidence.  

April 18th 2018

A meeting was held for the complainant to appeal against the first written caution issued on March 23rd. In the correspondence inviting him to the appeal meeting, the complainant was advised that he could be accompanied by a colleague or a trade union representative.   His position is that he was denied the representation that he wanted. He said that there were discrepancies in the respondent’s attendance policy and he was unhappy with the meeting room used on March 16th and 23rd. The complainant said that he was treated differently to others because he did not have return to work interviews following his absences and he said that his right to confidentiality had been breached. He said that an email regarding the number of days he had been absent from work was misleading and he claimed that, instead of the application of the attendance management policy, the respondent should have initiated a performance improvement plan.

In relation to his consultation with the OHC, the complainant said that he was asked to sign a blank form to indicate his consent to a consultation. He said that he was entitled to the preservation of his good name in the company. The complainant said that the intricacies of how the rolling year operated were not properly explained to him by his manager. He complained about the fact that different people were involved in the meetings concerning his absence and the fact that a medical certificate that he gave to his manager went missing on the day of the first hearing. Finally, the complainant alleged that his manager did not manage him properly and that his ideas were not considered, with the result that he was treated less favourably than others.

Following this meeting, the complainant agreed to attend a second consultation with the OHC.

April 30th 2018

The respondent sent two letters to the complainant on April 30th. The first letter confirmed that the complainant’s appeal against the first written caution was not upheld and the second was an invitation to a second capability meeting, triggered because the complainant was absent on April 5th.

May 10th 2018

At the capability meeting, the complainant said that he was denied a fair hearing at the previous meeting because he had not been issued with a copy of the attendance policy a second time. He claimed that the company had a plan to get him out of the business. The meeting was adjourned so that the employer could investigate these claims.

May 14th 2018

A meeting to investigate the complainant’s grievances was held on May 14th, chaired by “GMC,” the General Manager of the respondent’s UK commercial business.   The complainant had not had any dealings with this manager before the meeting. Afterwards, she said that she was shocked at his tone which she described as aggressive and argumentative.

May 15th 2018

In accordance with the company’s attendance management policy, the complainant was issued with a final written caution. The complainant responded by sending an email to GMC to ask her to include this caution in his list of grievances. He also submitted an appeal to HIB against the final caution, and he asked that this appeal be heard by a manager more superior to her, or by a human resources (HR) manager.

May 16th 2018

GMC wrote to the complainant to confirm that his grievances were not upheld and the reasons were set out in a letter which was submitted in evidence at the hearing.

May 17th 2018

The complainant was suspended because of behaviour that was perceived to be threatening and intimidating towards GMC at the meeting on May 14th.

May 29th 2018

The complainant appealed against the company’s decision not to uphold his grievances.

June 14th 2018

The company’s Head of HR investigated the allegations about the complainant’s behaviour during the grievance meeting. The complainant denied that he had “stormed into the room” on May 14th or that he was aggressive. He accepted that he used foul language but he said that this is the culture in the office. Full details of this meeting were submitted in evidence at the hearing.   The Head of HR concluded that, in his view, the complainant’s behaviour at the meeting warranted a disciplinary hearing, although it should not be categorised as gross misconduct.   For this reasons, his suspension was lifted and he was requested to return to work.

June 18th 2018

CM contacted the complainant on June 18th to discuss his return to work following his suspension. That evening, the complainant submitted a grievance concerning CM’s approach on this phone call, claiming that she was forceful and intimidating. He alleged that the phone call was hostile and one-sided and that CM lacked empathy and that she made no attempt to engage positively with him.

June 21st 2018

The complainant asked for the day off to prepare for two meetings that were scheduled for June 22nd, but his request was refused. He had a panic attack at work and was treated by ambulance personnel.   He was then absent from work and did not return prior to his resignation on August 29th.

June 22nd 2018

Although he was out sick, the complainant attended two meetings; the first, at 10.00am, was a disciplinary hearing arising from GMC’s allegations about the complainant’s behaviour during the grievance meeting on May 14th. The second meeting was at 3.00pm to hear the complainant’s appeal against the second written caution issued on May 15th. A manager from the respondent’s UK office, “GMP,” chaired both meetings. The complainant was accompanied by a colleague.

At the disciplinary meeting, it became evident that, unlike the opinions of the other people at the grievance meeting, the complainant did not accept that his behaviour was inappropriate. He claimed that the company’s intention was to attack and discredit him. He also raised a concern that GMC prevented him from accessing new opportunities.

At the second meeting at 3.00pm, the complainant appealed against the company’s decision to issue a final written caution regarding his absence. He claimed that, at the meeting on April 20th, he was not clear about the extent of his absences and that he had not been correctly advised that in five years, he had been absent for 25 days.

June 28th 2018

The outcome of the two meetings on June 22nd were confirmed. In relation to the first matter, the complainant’s conduct at the grievance meeting on May 14th, he was issued with a first written warning.   The appeal of his final caution due to his absence was not upheld.

July 13th 2018

The complainant appealed against the disciplinary warning and a meeting was held on July 13th, chaired by the respondent’s Director of E-Commerce, “DEC”. The complainant attended without representation.     He claimed that he was interrogated at the grievance meeting and that statements made following the meeting were incorrect. He also said that he had been treated unfairly regarding the application of policies and the provision of policy documents and he alleged that this was part of the respondent’s plan to get rid of him.

July 24th 2018

The complainant’s appeal against the outcome of the grievance meeting was chaired by the company’s Director of Cruise Operations, “DCO”. The complainant also attended this meeting without representation. Each of the points raised in the complainant’s email of May 29th in which he set out his concerns about the grievance process were discussed at the meeting and DCO gave an undertaking to consider the complainant’s position and that of the respondent’s managers.

July 27th 2018

DEC wrote to the complainant to confirm that, having considered his appeal against the disciplinary sanction issued in relation to his conduct on May 14th, the first written warning was well-founded.

August 1st 2018

In response to his appeal against the outcome of the investigation into his grievances, DCO upheld three of the ten grievances that were initially investigated by GMC on May 14th. An outline of the actions to be taken regarding the matters that were upheld is set out in a letter of August 1st, a copy of which was submitted in evidence.  

August 7th 2018

The complainant remained absent from work on certified sick leave. The respondent made efforts to get him to return to work, including a proposal to return on a phased basis.

August 29th 2018

The complainant resigned, indicating that he had no option but to do so. In correspondence to the company, he said that he intended submitting a complaint to the WRC.

Evidence of the Complainant

In response to questions from Ms Fitzsimons Belgaid, the complainant outlined what occurred after the company party on August 18th 2016, when he received a text message from LM in the early hours of the morning, warning him to be first in the office the next day. After the confrontation that followed when he was late for work, the complainant said that he became isolated and withdrawn. On August 23rd, when he tried to raise his concerns with CM, he wrote out a list of eight items that he wanted to talk about, but he said, “she pushed it back to me.”   He said that he wanted to raise a grievance, but CM discouraged him from doing so.

By May 2017, the complainant said that he was trying to show that he was “back on the bus” and behaving as a team player. CM had gone on maternity leave and he met offsite with HIB and told her everything that was bothering him. In his evidence, the complainant said that conversations with HIB were going well and he kept explaining how the August 2016 incident affected him. Although he was only communicating with LM by instant message, his relationship with him was improving. But he said, “I was deteriorating all the time.”

The complainant said that due to a chest infection, he was out sick on November 7th and 8th 2017. He was requested to go to an attendance review meeting on November 24th, where HIB agreed that he should have a conversation with the company’s OHC.   Arising from this, the doctor found that the complainant was fit for work but that certain work-related issues needed to be resolved. The doctor suggested mediation, but in an email to HIB on April 12th 2018, he said that mediation between him, LM and CM would not be helpful.

Arising from the attendance review meeting, the complainant said that he was told that, to avoid an escalation of the attendance policy, he had to have perfect attendance for six months. It is his view that he should have been put on a performance improvement plan and that the attendance management policy should not have been invoked.

In February 2018, the complainant said that he was out sick again for another two days. He was also sick with a chest infection on another day, but he didn’t take time off. During a snow storm in March 2018, the complainant said that he travelled to work because, unlike most of his colleagues, he wasn’t told on time that the office was closed.

A capability meeting was scheduled for March 16th. There was a dispute over who would represent the complainant and he requested that Ms Fitzsimons Belgaid to accompany him. The company’s policy provides that an employee may be accompanied by a colleague or a trade union official. In his evidence, the complainant described an altercation with, CM2, the manager who was scheduled to chair the capability meeting, who, he said, was pressurising him to reveal Ms Fitzsimons Belgaid’s identity. In the end, the capability meeting was adjourned until March 21st and Ms Fitzsimons Belgaid was present in another office and the complainant consulted with her as he needed to during the meeting.

The outcome from this meeting was that the complainant was issued with a “first written caution” under the respondent’s absence management policy and on March 30th, he appealed against this caution. He explained his reasons as follows:

1 He claims that he was not offered the right to be represented.

2 Not all the evidence was provided at the meetings.

3 He did not agree to anything at the meeting.

4 Information about him was leaked.

5 Wrong information was recorded at the meeting.

6 No clarification was provided at the meeting, despite his requests.

The complainant was out sick on April 5th and on April 9th, he was informed that the company would proceed to the next stage of the attendance management policy. On the same day, in a four-page letter, the complainant said that he submitted a grievance outlining his concerns about how he was being treated by the company.   A copy of his letter was submitted in evidence and the grievances can be summarised as follows:

1 A complaint about how he was treated by his line manager in August 2016 when he was late for work.

2 An allegation that CM discouraged him from raising his concerns about this matter by telling him he could be seen as a trouble-maker.

3 An allegation that information he confided in CM and LM about his youngest son was shared with someone else.

4 An allegation that one of the complainant’s colleagues remarked that, in his company profile photo, he looked like a terrorist.   The complainant claims that this was “bad form,” because his mother is married to a man who is a Muslim and his grandmother is a Muslim.

5 The complainant requested to leave work at 5.00pm every day, but he was permitted to do so only on three days a week. He re-submitted his request to leave at 5.00pm every day and the company agreed.

6 In his letter, the complainant referred to personal issues that began to be “triggered” when he was in discussions with HIB when she was attempting to resolve the problems he was having at work.

7 The complainant raised concerns about his absence was being managed from June 2017, which led to his agreement to attend the OHC.

On April 30th, the complainant received confirmation that his appeal against the written caution was not successful and he was also invited to a second capability meeting as a result of his absence on April 5th. He said that he was feeling on edge that day and he asked CM2 if he could take emergency annual leave. It is the complainant’s view that the escalation of the attendance policy was part of the company’s plan to get rid of him and that this plan was now being fast tracked. He said that the investigation into his grievance was pushed out and that he kept sending emails to HR about when his grievances would be addressed. Five and a half weeks after submitting his four-page document, the complainant said that he got no response. He said that during this time, he got an email from an assistant manager in the Cork office who said that she had been appointed to hear his grievance. The complainant said that he told her that he wasn’t happy for her to take on this responsibility.

A meeting was eventually arranged for May 14th, chaired by the General Manager of the respondent’s UK commercial business, “GMC.” The meeting took place over four hours in a Dublin hotel. The complainant, said that, again, he was not permitted to have his chosen representative at the meeting with him.   He said however, that GMC listened to him. The following day, the complainant said that he was issued with a final written caution concerning his absence. He said that when he received the caution, he sent an email to GMC to ask her to include this in his list of grievances.

Due to GMC’s perception that he had been threatening and intimidating at the meeting on May 14th, three days later, the complainant said that he was suspended pending an investigation into his conduct. A meeting to carry out an investigation into this matter was held on June 14th in another Dublin hotel, chaired by the company’s Head of HR. The complainant said that, based on a written statement of GMC, the Head of HR decided that his behaviour at the meeting on May 14th was not misconduct. In his evidence, the complainant said that he was asked by the Head of HR, “what would it take to make this go away?” and he said that he was offered €10,000. He said that he was asked to think about the offer. On June 18th, during what he described as a “heated” conference call with CM and a HR advisor, he was informed that the suspension would be lifted and he was to return to work.   The complainant said that he felt very uncomfortable about this prospect and he asked if he could move desks to the call centre, but this was refused. He said that when the call ended after 48 minutes, the HR advisor phoned him back and said that it would be very difficult for him to come back to work and he should think about the offer made by the Head of HR.

Arising from the investigation meeting on June 14th, on June 19th, the complainant was requested to attend a disciplinary meeting in a Dublin hotel on June 22nd. He returned to work on June 21st and he said that no one said anything to him and that he wasn’t greeted when he arrived. He said that CM asked him to send her an email to let her know how he was getting on and he told her that things were “not good.”   He said that he asked CM if he could go home, because he felt that he was having a breakdown. He also sent an email to a first aider and asked if he could go home, but he said that the first aider said that she had no authority to send him home. At some point, an ambulance was called and the complainant was treated by paramedics.

Two meetings were held on June 22nd; the first was in relation to the complainant’s conduct at the meeting to discuss his grievances on May 14th and the second for him to appeal against the final caution regarding his attendance.   The outcome from these meetings was a written warning concerning his conduct and the upholding of the final caution regarding his absence. In his evidence, the complainant said that at this point, he felt suicidal and he went to his doctor. He was also examined by the company’s OHC and he was advised to take four to six weeks off work. He said that the OHC advised that the non-medical issues needed to be resolved.   The complainant said that he never returned to work after June 22nd. He said that he sent in photos of medical certs, but he didn’t get sick pay.

Having been absent for around seven weeks, the complainant said that in the middle of August, he received an email from CM who asked him to go to the OHC again; however, he said that no appointment was made. On August 20th, he was informed that the medical certs he was sending to his employer were not acceptable. He said that he was given two days to go to the doctor and to get a letter explaining why he was absent. It is the complainant’s case that he doesn’t have to go to a doctor to get a medical cert and that he couldn’t get an appointment with his doctor.   On August 28th, he received an email in which he was informed that he was absent without authorisation and that this could be considered to be gross misconduct. On August 29th, he sent a letter of resignation. As the letter summarises the complainant’s reason for leaving his job, I will re-produce it in full here:

“To whom it may concern

“It is with great regret and disappointment that I feel after almost 6 years with (the respondent) company that I have no other option but to resign my position after exhausting the company’s grievance procedures without my issues been (sic) resolved or at least taking seriously (sic) in any shape or form not to mention the diminished trust that has left me feeling let down by a company that I valued and worked hard within.   Furthermore, I was victimised as a result of raising a grievance and labelled a trouble maker as predicted by my line manager in 2016, which is the reason I l kept quiet for so long before finding my voice to defend myself.

“The nature of how the company has treated and pursued me since I was harassed, intimidated and abused in August 2016 and further harassed, intimidated and held against my will in March 2018 have undoubtedly contributed to my decision. The company has since failed to provide me with a safe working environment relating to numerous issues all of which I have highlighted on the record. My contract has been breached along with my privacy whereby my data and confidentiality were breached on more than one occasion. In addition, I was labelled a trouble maker and terrorist not to mention a difficult case and according to an email exchange between HR and a manager, there was a definite plan to manage me out of the company.

“I would like to add that I have always given my best to carry out my duties and my performance has never been a question even under the extreme pressure I have felt owing to the company’s failure to provide me with a safe working environment. At this point in time as you are aware from the Occupation Health Report and my own Doctor’s sick certificate that I am suffering from stress and anxiety which has me taking prescribed medication. In fact, the recent accident report form clearly outlines how the workplace is causing me to have serious health issues hence my current inability to return to work. In addition, the Occupational Health has confirmed that my workplace issues must be addressed before a return to work could be possible.

Today, having received my payslip and after not been (sic) paid despite the company’s sickness policy and the fact that my current situation is well documented as a workplace issue has left me with no other choice but to resign.

Yours sincerely…”

Cross-examining of the Complainant

In response to questions from Ms McNamara, the complainant said that he became aware of the company’s capability policy in November 2017. He said that he “had no great insight” into the company’s policies. He said that the company’s policies are set out in a handbook, but that he never got a copy. In August 2016, the complainant said that he asked LM how to raise a grievance, but that the policies were only available to him when he became involved in the disciplinary process. He said that he didn’t think about asking for the policies beforehand.   When HIB got involved after CM went on maternity leave, he said that “things were better” and HIB was making an effort to sort things out informally.

Ms McNamara asked the complainant why he didn’t raise a grievance between August 2016 and April 9th 2018. She referred to a conversation that the complainant had with HIB on January 15th 2018, at which he confirmed that he had decided not to raise a grievance about the August 2016 incident. In response, the complainant said that in April 2017, he submitted “a big bulk of grievances” and he explained that he didn’t raise these issues before that date because HIB was dealing with things informally and he trusted her.

Ms McNamara referred to an email that the complainant sent to the head of his department, CM, on October 26th 2016 in which referred to LM, his line manager, with whom he had the altercation in August 2016:

“Hi (CM)

Just wanted to drop a quick line after my review to commend (LM’s) ‘Management’ skills, we spoke about everything that went on in my personal life in the past year and after the review I was thinking a lot about things that has gone wrong for me, again mainly personal but I realised how much (LM) helped me and still continues to do so and yourself. His patience and understanding from the beginning was clear to see and I realise that now obviously looking back on it I don’t think I would have been able to cope here if it wasn’t for his help to be honest. I know we had our ‘moment’ and I regret my handling of it at the end of the day he was just trying to get me to cop on.   He mentioned that he has his review soon and I’m not sure if it can be fitted in but from a (company) ‘behaviour’ point of view he showed his collaboration skills he motivates me and I have learned an awful lot from him in regards trading styles decision quality etc. I feel comfortable and Motivated in my position again plus 95% of my personal issues are dealt with and I credit it to (LM) he’s a great manager and a decent teacher.

Thank you also.”

Ms McNamara raised the complainant’s concerns about representation at the meetings regarding his attendance and at the meetings to discuss the grievance he submitted in April 2018. The complainant said that he is not arguing that he was denied representation, but he is saying that he was not offered the representation that he wanted.

Ms McNamara summarised the meetings that the complainant attended; two capability / attendance meetings, a disciplinary meeting and meetings to discuss his grievance.   There were also meetings to appeal against the outcome of the disciplinary meeting and the outcome of the findings regarding his grievance. He said that he didn’t want anyone from the Irish business to consider his grievances. He lodged the grievance on April 9th 2018 and a meeting didn’t take place until May 14th. In the meantime, the complainant said that he and HIB were trying to sort things out informally. However, he was suspended on May 17th. He said that he would not accept a manager from the Irish business dealing with the allegations about his conduct at the meeting on May 14th.

The complainant said that it was inappropriate for his attendance to be dealt with under the company’s capability policy and that he should have been on a performance improvement plan.

In the end, the complainant said that he was accused of gross misconduct because, during his final absence from June to August 2018, he did not submit medical certs in accordance with the company’s policy. He argued that unauthorised absence should be classified as misconduct and not gross misconduct and he thinks that the “fast pace of disciplinary hearings” had the purpose of “driving me out.” Summarising his circumstances, Ms Fitzsimons Belgaid said that if the complainant had continued in the company, “trust was gone, he would have always been watching his back, waiting for the next issue.”

Legal Submissions

Ms Fitzsimons Belgaid submitted several legal precedents to support her argument that the complainant was constructively dismissed.

Referring to the contract test, and my role, as the adjudicator, to determine if the employer’s conduct was such that there was “a significant breach going to the root of the contract,” Ms Fitzsimons Belgaid referred to the case of Western Excavating Ltd v Sharpe [1978] ICR 221. Here, at the UK Court of Appeal, Denning MR, summarised the principles of “the contract test:”

“If the employer is guilty of 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 further performance.”

Considering the reasonableness test, Ms Fitzsimons Belgaid referred to the Irish Supreme Court case of Berber v Dunnes Stores [2009] ELR 61, the relevance of which I will examine below under the heading, “Findings and Conclusions.” Ms Fitzsimons Belgaid also quoted extensively from other precedents including Lewis v Motorworld Garages Limited [1986] ICR 157 regarding the contract test and Omilaju v Waltham forest London Borough Council [2005] ICR 481 regarding “last straw” dismissals.

Concluding Remarks Regarding the Complainant’s Resignation

Ms Fitzsimons Belgaid referred to an email of November 15th 2017 from HIB to two members of the HR team in which HIB set out her proposed approach to a meeting with the complainant that took place on November 24th. In the email, HIB refers to the attendance management policy and the complainant’s progress “down the capability route” which could lead to his dismissal. Ms Fitzsimons Belgaid argued that this demonstrates the company’s intention to dismiss the complainant.

Ms Fitzsimons Belgaid also asked me to consider the statements of a HR Business Partner who contacted GMC on May 15th, to enquire about how her meeting with the complainant went the previous day. In a preceding mail, GMC said that she was “shocked by his aggressive and argumentative language and tone, considering I had never met his (sic) before.” GMC also said that she wasn’t sure if she would be able to resolve all the issues raised by the complainant, to which the HR Business Partner replied, “It has been a difficult case.”   She then suggested how GMC would be supported to manage the grievance process and she concluded the email by saying,

“Dependent on how aggressive you felt (the complainant) was during the hearing, I’d be interested to hear your thoughts on whether you feel a suspension would be warranted? It’s not acceptable for employees to feel intimidated by the actions and behaviour of another employee.”

Ms Fitzsimons Belgaid’s position is that this email shows that, on the suggestion of the HR Business Partner, GMC submitted a report that she was intimidated by the complainant at the meeting of May 14th 2018.

The complainant appealed against the finding that his grievance was not upheld and Ms Fitzsimons Belgaid referred to the letter from DCO, who heard the appeal. DCO referred to his conclusion that the points raised in the appeal may not have been investigated as thoroughly as they could have been, but he concluded that the complainant’s behaviour “played a significant part in the lack of investigation into certain parts of your grievance.”

In summary, Ms Fitzsimons Belgaid argued that the complainant’s right to earn a living was ignored and that he should have been permitted to be represented by his preferred representative. His case is that he was not given an opportunity to give his version of events, that he had no right of reply and that he should have been allowed to cross-examine those who made allegations about his conduct. Ms Fitzsimons Belgaid submitted that the HR Business Partner “gave the lead” to GMC regarding her complaint about the complainant’s conduct at the meeting on May 14th 2018. She said that GMC’s email setting out her concerns about the complainant’s conduct came 30 minutes after the HR Business Partner’s mail asking her to consider is a suspension was warranted. She claimed that the investigation into the complainant’s conduct was flawed and that there was no adherence to due process or natural justice. The company’s policy provides that, in the first instance, “should you have any grievance concerning your employment, you must contact your line manager in the first instance for the purpose of seeking redress.” She said that CM should have dealt with the complainant’s grievance in August 2016 and that her failure to do so is a breach of this policy.   In his letter of August 2nd 2018, DCO found that the complainant’s allegations about CM were vexatious, and Ms Fitzsimons Belgaid asked how, on this basis, were GMC’s allegations about the complainant’s behaviour not considered to be vexatious?   Why was he threatened with disciplinary action for continuing to raise complaints? In deciding to resign, Ms Fitzsimons Belgaid said that the complainant felt that “he had no other option because the company was on a mission to push him out.”

Referring to section 1 of the Unfair Dismissals Act 1977 and the definition of constructive dismissal, Ms McNamara said that there exists a burden on an employee seeking to establish that he has been constructively dismissed to show that;

a. He was entitled to terminate his contract because of a demonstrated breach of contract on the part of the employer, referred to as the contractual test; or

b. The employer acted so unreasonably so that the continuation of the employment was intolerable and it was reasonable for the employee to resign, referred to as the reasonableness test.

It is the company’s position that the complainant has not satisfied either criterion.

Regarding the contractual test, Ms McNamara submitted that, at all times, the respondent acted in accordance with the terms of the complainant’s contract. She said that the contractual test is set out in the case of Conway v Ulster Bank UD474/1981 where the Employment Appeals Tribunal (EAT) found that the employer did not violate any term of Ms Conway’s contract or the policies of the bank. Like the Ulster Bank case, the actions of the respondent in the case under consideration here did not show that there was “a repudiation of the contract of employment” and did not show that “the respondent no longer intended to be bound by the contract.”

Ms McNamara said that the respondent’s position is that they fulfilled their contractual obligations to the complainant, implied and otherwise, at all times.   In light of this, she argued that, on the basis of the contractual test, the termination of the complainant’s employment cannot be considered to be a constructive dismissal.

In applying the reasonableness test, Ms McNamara said that two interwoven factors must be considered:

a. Did the employer act so unreasonably so as to make the relationship intolerable? and,

b. Did the complainant act reasonably in resigning, particularly in relation to how he exercised the internal grievance procedures?

Ms McNamara submitted that the respondent acted reasonably and fairly at all times in accordance with its own policies, best practice and the conduct of managers, as evidenced by the documents and the evidence submitted at the hearing. It is her view that the complainant did not act reasonably, because, while he engaged with the respondent’s grievance procedures, he refused to accept the outcome. The complainant resigned on August 29th 2018, when his manager was actively trying to facilitate his return to work, but in the context of a possible disciplinary investigation into the medical certificates he submitted over the previous seven weeks.

In his letter or resignation, the complainant sets out a variety of reasons that led him to his decision, commencing in August 2016, when he was confronted by his manager when he was late for work. At the time, it seems that he followed the advice of his manager not to raise a grievance about this incident. Ms McNamara submitted that the complainant cannot claim to have been unaware of the grievance procedure and his attempt to claim that he had an outstanding grievance from August 2016 is, she submitted, “somewhat disingenuous.” Ms McNamara asked me to have regard to the email from the complainant to CM on October 26th 2016, in which he demonstrates high regard and appreciation for his manager.

Dealing with the notion of “unreasonable behaviour,” Ms McNamara said that there was an onus on the complainant to show that he acted reasonably and she referred to the case of McCormack v Dunnes Stores, UD 1421/2008, where the chairman summarised this requirement:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

It is the respondent’s case that the complainant did not act reasonably in the course of the processes that were ongoing over the period from March to August 2018. When he was challenged about his absence in March 2018, the complainant then initiated a grievance process, looking back over more than 15 months to gather various allegations.

The complainant submitted the issue of representation as a grievance, yet the respondent’s position is that he was never denied the opportunity to be represented by a colleague or a trade union official. As set out in the documents submitted in evidence at the hearing, the respondent argues that they explained their position regarding representation to the complainant.   Ms McNamara submitted that the respondent’s approach to representation is supported by the provisions of Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures. Paragraph 4 of the Code states:

“For the purposes of this Code of Practice, ‘employee representative’ included a colleague of the employee’s choice and a registered trade union but not any other person or body unconnected with the enterprise.”

Constructive Dismissal

The definition of dismissal at section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, and considering how his grievances were addressed, was it reasonable for him, or was he entitled to terminate his employment?

Grievances

When he was late for work on August 18th 2016, the complainant’s manager, LM, lost his temper, raised his voice, used foul language and gave him a telling off. The complainant’s correspondence shows that both attended a team meeting at 10.00am after which LM apologised saying, “I handled that all wrong” and the two shook hands. As an example of how to manage a misdemeanour, LM’s approach was unacceptable.   However, as a one-off incident, it was not bullying or harassment. I cannot see what would have been achieved by an investigation because the facts of the matter were clear; LM lost his temper with the complainant because he was late for work and shortly afterwards, he apologised.   As his department head, CM advised the complainant that the outcome of any investigation would be that LM would get “a slap on the wrist” and he, the complainant might be seen as a trouble-maker. In the context of this incident, it is my view that this was not unreasonable advice from a department head.

I have examined the evidence submitted by both sides and it is apparent to me that the unravelling of the complainant’s relationship with his employer began not with this incident in August 2016, but in November 2017, when he was invited to a meeting to discuss his sickness absence. I have reached this conclusion because in October 2016, it was evident from the complainant’s correspondence to his department head that he had put the August 2016 incident behind him. It appears that he had gone through some personal difficulties and referring to LM, he said,

“His patience and understanding from the beginning was clear to see and I realise that now obviously looking back on it I don’t think I would have been able to cope here if it wasn’t for his help... I know we had our ‘moment’ and I regret my handling of it at the end of the day he was just trying to get me to cop on.”

On November 24th 2017, following a meeting with HIB, the head of the Irish business, no action was taken regarding the complainant’s absence, but he agreed that he would consult the company’s OHC. From the summary of the report submitted in evidence, the complainant told the OHC that he was experiencing stress at work. On a call with HIB on December 22nd 2017, he said that nothing further had happened since August 2016, but he said that he found it difficult to forget about that incident and he hadn’t been able to get over this period in his work life. I find it difficult to accept that a robust admonishment for being late in August 2016 was something that the complainant couldn’t stop thinking about in January 2018.   At a meeting with HIB on January 15th, the complainant said that he didn’t want to pursue a grievance about the matter and he said that he would be happy to engage with her to resolve issues. The complainant also asked HIB if he could be made redundant, clearly indicating that, in January 2018, he thought about moving on.

It is apparent to me therefore, that up to the end of 2017, the complainant had no complaints about how he was being treated at work. In conversations with HIB, he told her that the office was cold, he was concerned about CM returning from maternity leave and it appears that he may have felt he wasn’t getting his fair share of promotional trips. In an email to HIB on January 23rd 2018 however, referring to the August 2016 incident, he said, “I’m not happy with the tactics that were used and also the cover up of it all then which again affected me as I said I feel like I was bullied in that room…”

Having listened carefully to the complainant’s evidence on this matter, it is my view that he had resolved the August 2016 incident in his own mind by October 2016, when he was appreciative of LM’s management style and his personal support through difficult times. However, from a tactical perspective, it seems to me that he held on to its potential as a grievance that he could raise in response to any challenge about his absence.

The period from March to June 2018 is peppered with meetings firstly under the company’s capability policy (the absence management policy) and then meetings to address the complainant’s grievances, and finally, a disciplinary investigation because of his conduct at a grievance meeting. On March 23rd, he received a written caution because of his absence, equivalent to a first written warning in a standard disciplinary procedure. He was then out sick on April 5th. On April 9th, CM2 wrote to him asking him if he was taking April 5th as a sick day, because if he was, it would “trip your attendance again,” meaning that he would be invited to another meeting and a second caution would be the likely result. The same day, he submitted a letter setting out “a grievance which dates back to August 2016.” He added a complaint that a senior manager appeared to know about a personal issue he was dealing with, the “you look like a terrorist” remark and a complaint about the effort he had to go to to be allowed to leave work at 5.00pm. He also complained that LM couldn’t locate a medical cert he had given him and that he was prevented from having “a trusted rep” at the first capability meeting. Finally, he referred to a discussion about his “trusted rep” that he had with CM2 on March 15th, when he said that she put her hand on the door to prevent him from leaving.

While the company investigated these matters, it is my view that the complainant’s strategy in submitting these grievances was to maintain a balance of power between him and his employer; if they were going to investigate his absences, he was going to raise the conduct of his managers.

Why did the Complainant Resign?

The complainant’s letter of resignation is reproduced above in the section headed “Summary of the Complainant’s Position.” His reasons for resigning can be summarised as follows:

He had exhausted the grievance procedures and his issues were not resolved;

He lost trust in the company and he felt let down;

He felt that he was victimised for raising a grievance;

He said that he was harassed, intimidated and abused by his manager in August 2016;

He said that he was intimidated by a manager and held against his will in March 2018;

The company failed to provide him with a safe working environment;

There was a breach of his right to the protection of his data;

He was labelled a “trouble-maker” and “terrorist” and a “difficult case;”

There was a plan to manage him out of the company;

He was not paid for his final period of absence.

Was it Reasonable for him to Resign?

Having exhausted the grievance procedure, the complainant said that his issues were not resolved.   From his perspective, they were not resolved to his satisfaction, as only three out of 10 were upheld. He claims that he was victimised for raising a grievance; however, the written cautions were directly related to his absence, and there is no evidence of the company taking any action in response to his submission of a list of grievances. He was not harassed, intimidated or abused in August 2016 and his own notes of the event show that he stood up to his manager and asked him why he lost his temper. He may have been uncomfortable in March 2018, when CM2 challenged him about the identity of his chosen representative, who was his mother, but it is not credible to think that he was intimidated. He said that he ran out of the place where this conversation was happening, so he was clearly not held against his will.

In relation to his other reasons for resigning, the complainant did not explain what was unsafe about his working environment. He was never referred to as a trouble-maker, but he was advised that a complaint about his manager losing his temper might result in him being considered as such.   Neither was he referred to as a terrorist. The person who he alleged made this comment about his profile photo said that if she did, it was “not intended as a slight” but was said in the context of the profile photos “not being very flattering.” In an email between a HR Business Partner and GMC, the manager assigned to hear his grievances, the HR Partner described the grievance process “as a difficult case.” This is a reference to the grievance process, and not to the complainant, and it is not an unreasonable remark, when one considers the complexities involved in the management of all the issues.

In his final comments in his resignation letter, the complainant says that there was a plan to manage him out of the company. He grounds this allegation on an email from HIB to a HR Business Partner and others on November 15th 2017 in which she sets out her approach to the planned capability meeting scheduled for November 24th. This correspondence was provided to the complainant following a data access request. In the email, HIB is seeking advice from the HR team about the next stages in the capability process in the context of the complainant’s record in the previous six months of 10 sick days, two force majeure days, two “due diligence” days (at the discretion of the company) and 24 days of annual leave.   In the email, HIB sets out what she intends to say to the complainant on November 24th:

“…I want to state in this meeting he cannot have any more sick days in the next 2(?) months. As we will take him down the capability route on the next sick day (I suspect he will want to change seats) and he will get a stage 1 written warning.   (can we do this on his next sick day if that next sick day is certified?) Then we reset for another 2(?) months and it goes to a stage 2 final written caution. Another 2(?) months and it’s stage 3 dismissal. Is this fair / appropriate amount / too short/long? And can I do this in the same meeting?”

It is clear from this that HIB is planning to have a discussion with the complainant about what will happen if he is absent again in the coming months. She intended to explain that if he was absent, the process would result in his dismissal. In logical terms, this is a plan to manage the complainant out of the company; however, it leaves the end result within the capacity of the complainant to determine: if he was in work every day, he would not be dismissed.

Despite the extent of his absences, the meeting with HIB referred to above resulted in no sanction; so clearly, there was no great endeavour to manage him out. When he was absent on April 5th 2018, CM2 wrote to him to advise him that if this was categorised as a sick day, it would put him back in the capability process. If the company was serious about managing him out, CM2 wouldn’t have sent this indicator note, and she would have simply allowed the process to “trip” him into the next warning letter.

In his evidence, the complainant said that on June 14th 2018, the Head of HR offered him an “ex gratia” payment of €10,000 to leave. It is clear therefore, that, from the company’s perspective, a decision was reached that their relationship with the complainant wasn’t working out.   While this offer indicates that, by June 2018, a person in authority concluded that it would be best to expedite the complainant’s exit from the company, an offer of a settlement leaves the decision in the hands of the employee, and in the end, it wasn’t accepted.

The Contract Test and the Reasonableness Test

The issue for consideration here is if the conduct of the employer was such that it was reasonable for the complainant to resign and to claim that he has been constructively dismissed. Many years of case law on constructive dismissal point to the requirement for the complainant to show that the conduct of the employer must fail one or both of two tests; the contract test and the reasonableness test. Legal submissions on these concepts were submitted by both sides at the hearing.  

In the case of Conway v Ulster Bank, which was referred to by Ms McNamara, the EAT found that the Bank did not violate any term of Ms Conway’s contract and her complaint of constructive dismissal was not upheld.   There is no evidence that the employer in the case under consideration here “no longer intended to be bound by the contract.” I find that, at all times, in respect of their dealings with him, the respondent’s managers operated in accordance with the terms of the complainant’s contract and in accordance with the company’s attendance management and grievance policies.

The Supreme Court case of Berber v Dunnes Stores was referred to by Ms Fitzsimons Belgaid where it was held that:

“In determining whether there has been a breach of the implied term of mutual trust and confidence in employment contracts:

1 The test is objective.

2 The test requires that the conduct of both the employer and the employee be considered.

3 The conduct of the parties as a whole and the cumulative 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 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.”

In the six months before his resignation, nine managers were engaged with the complainant under various policy headings; the attendance management policy, the grievance procedure and the disciplinary procedure. From the outset, in November 2017, when he confided in HIB until July 2018, by which time he had formal meetings with eight other managers, it is my view that he was treated with consideration and fairness.   Ultimately, he didn’t like the outcome of these engagements and, when he resigned in August 2018, it would be reasonable to assume that he was completely fed up. At that point, he wasn’t being paid while he was out sick and a disciplinary investigation may have been initiated because his medical certs were considered to be invalid. Anyone would be fed up in these circumstances, but the facts do not point to unreasonable treatment by the employer.

Conclusion

It is well established that the burden of proof required in cases of constructive dismissal is a high bar for a complainant. It’s clear from his evidence that the complainant was unhappy with the relationships in the company where he worked. He was perfectly entitled to resign if he wanted to remove himself from what he considered to be an intolerable situation. To succeed in a complaint of unfair dismissal however, the complainant must demonstrate that his employer has inflicted a fundamental breach on his contract of employment or, has acted so unreasonably, that he had no alternative but to resign. This complainant has not shown that his employer was in breach of his contract, or, that they acted unreasonably in their treatment of him.

In conclusion, I find that the complainant has not made out the standard of the burden of proof required that demonstrates that the conduct of his employer was such that he had no alternative, but to leave his job.

I find that the complainant has not demonstrated that his employer behaved so unreasonably, or that there was a fundamental breach in his contract of employment that he had to resign from his job. Because of this finding, I have decided that this complaint under the Unfair Dismissals Act is not well founded.

The complainant’s case is that he was discriminated against on the grounds of age, gender, disability family status and religion.

Age

The complainant alleges that he was bullied because of his age, when his managers referred to his representative as “your mother” despite his requests that she be referred to by her name because she was consulted in a professional capacity, as she has a Master’s Degree in HR and a diploma in employment law. He said that he was offended and he felt intimidated when Ms Fitzsimons Belgaid was referred to as his mother because he felt that this was done to annoy him and to suggest that he needed his mother to fight his battles.

Gender

The complainant argues that he was treated less favourably than his female peers because he asked to leave work every day at 5.00pm and, unlike his female colleagues, he said that he was only permitted to leave at 5.00pm on three days. It was subsequently agreed that he could leave at 5.00pm every day.

The complainant also alleged that he was paid less than his female colleagues doing the same job; however, he produced no evidence to this effect.

In information supplied to him following his data access request, the complainant discovered that a female colleague had been absent for more than three days in six months, but no action was taken. For this reason, he claims that he was treated less favourably than a female colleague who, like him, was in breach of the capability policy.

Disability

The complainant submits that he was treated less favourably than others due to his asthma and his mental health issues “which were a direct result of the employer’s behaviour.” When he was suspended due to his conduct at a meeting on May 14th 2018, the manager referred to him as “agitated.” He said that no one took the time to understand his health. He said that it seems that he was suspended because he was agitated, but he was agitated because of his mental health. His position is that his agitation was caused by work-related stress.

The complainant also said that the respondent would not agree to a reasonable accommodation for his illness, which involved him sitting in a room separate from the rest of his colleagues in the commercial department. While CM2 permitted this arrangement for two weeks, CM would not allow him to sit in a different area on a permanent basis.

Family Status

The complainant was due to take parental leave in October 2017, but he asked if he could change the dates that had been approved. His request was refused and he argues that, on this basis, he was discriminated against on the ground that he is a parent.

Religion

The complainant said that in 2016, he was sitting at his computer and his profile picture was displayed. He said that HIB’s assistant suggested that he change the picture, commenting that he “looked like a terrorist.” The complainant alleges that this remark discriminated against him indirectly on the basis of religion, because his grandmother is a Muslim and he his mother is married to a Muslim. At the hearing, the complainant agreed that the person who made the comment was not aware of this fact.

The Burden of Proof

Ms McNamara referred to the well-established practice of the former Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that they were treated less favourably than another person is, has been, or would be treated on the basis of the discriminatory ground that is cited. In the Labour Court case of Queally Pig Slaughtering v Robert Tkac [2016] EDA 1618, the jurisprudence in the decision in Southern Health Board v Mitchell [2001] ELR 201, was applied to determine if the probative burden shifts to the respondent, where the Court stated,

“The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.”

Setting out what these “primary facts” must show, Ms McNamara referred to the Labour Court case of Melbury Developments Limited v Arturs Valpeters EDA 0917, where the chairman stated:

“All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The evidential burden which must be discharged by a complainant before he or she has established that, based on the primary facts, discrimination has occurred, was set out in the Labour Court appeal of Graham Anthony & Company Limited against the decision of the Equality Officer in respect of the complaint of Mary Margetts, EDA 038. This was a complaint by Ms Margetts that she was discriminated against on the grounds of her marital status, her family status and her age; however, the point made by the Chairperson of the Court, Ms Jenkinson, is relevant here:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The respondent’s case is that it is only when a complainant has discharged this burden to my satisfaction, that the burden shifts to the respondent to rebut the inference of discrimination.

Age

The complainant is seeking to establish a claim of discrimination because of his request for Ms Fitzsimons Belgaid, who is his mother, to represent him at meetings with the respondent. Ms McNamara submitted that the reference by a manager to the complainant’s representative as “your mother,” cannot ground a claim of discrimination. No comparator has been identified who was treated more favourably because they chose to be represented by someone else.

For the respondent, Ms McNamara said that the complainant was not permitted to have Ms Fitzsimons Belgaid representing him, not because she is his mother, but because it is the company’s policy that employees are represented by a trade union representative or a colleague.

Gender

The complainant alleges that he suffered from discrimination on the gender ground, claiming that he was treated less favourably than his female colleagues in relation to working arrangements to suit his childcare needs. He requested permission to leave work at 5.00pm. In his own evidence however, the complainant said that he was permitted to leave at 5.00pm.

Under the heading of gender, the complainant alleged that a female colleague was not sanctioned when she had the same level of absenteeism as him.

The complainant also alleges that he was excluded from the company’s 2017 bonus scheme when his manager didn’t give him a letter confirming the amount of bonus due. Ms McNamara said that LM forgot to give him the letter and it was given to him in April 2018. She said that the bonus was paid in October 2018.

Disability

Regarding the complainant’s claim that he was discriminated against on the disability ground, Ms McNamara referred to the Labour Court decision in the case of A Government Department v a Worker EDA 094, where the Court stated:

“…the only issue which the Court must decide is whether the condition from which the complainant suffered is a disability within the statutory meaning of that term. That is a mixed question of law and fact which turns on the true construction of paragraph (e) of the definition of disability as contained at s.2 of the Act and the application of that definition to the facts as admitted or found by the Court.”

In its findings on this case, the Court went on to elaborate on the difference between general illness and disability:

“…the Respondent argued that a strictly literal interpretation of the statutory definition would produce the result that mere unhappiness or ordinary stress or disappointment which effects a person’s emotions would have to be classified as a disability. This, it was submitted, would be an absurd result.   There is considerable cogency in that argument.

“The Court must take the definition of disability as it finds it.   Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

On the basis of this conclusion, the respondent’s case is that a distinction must be made between what constitutes a disability from a general illness. Ms McNamara argued that for an employee to demonstrate that they have a disability, they must provide medical evidence. This was the precise finding of the Equality Officer in the case of A Worker v A Food Manufacturer DEC-E2010-187:

“However, no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant's GP, was adduced to prove that the complainant is disabled within the meaning of the Acts. The only documentation the complainant provided was an appointment with a consultant and a generic letter from the hospital to advise him how to prepare for his stay. The only other medical-related evidence submitted came from the respondent and consists of non-descript sickness certificates.”

The Equality Officer concluded that, in the absence of medical evidence, the complainant could not satisfy the probative burden threshold set out at section 85 of the Employment Equality Act and in its absence, a “prima facie” case of discrimination cannot be established.

The case of Mr O v A Named Company DEC-E2003-052 was cited by Ms McNamara as a case where evidence was submitted to the effect that workplace stress may be considered to be a disability. The complainant in this case was however examined by two psychiatrists and was diagnosed as suffering from a “severe anxiety type illness or an atypical depressive illness.” The complainant was also treated both as an inpatient and a day patient in St John of God’s Hospital. The Equality Officer noted that the complainant’s medical condition was the result of major incidents that occurred before he started working with the respondent.

In the decision in Mr A v A Charitable Institution DEC-E2011-049, the Equality Officer concluded that the decision just referred to, DEC-E2003-052 had no relevance for the case she was dealing with, where the complainant submitted medical certificates to the effect that he was suffering from work-related stress. She stated:

“I am also not satisfied that the submission of a medical certificate indicating that an individual is suffering from ‘work-related stress’ in and of itself, comes within the meaning of section 2 of the Employment Equality Acts.”

In the case under consideration here, the complainant was referred to the company’s OHC and the two consultant’s reports were submitted in evidence. They show that the complainant was diagnosed by his GP as suffering from depression and anxiety and that he attributed this to “difficulties he is experiencing at work.”   Ms McNamara submitted that, at the capability meetings held with the complainant, he was asked what might help him to come to work more regularly. He asked for a heater under his desk, but did not respond any more comprehensively to this question; instead, he used the meetings to air his grievances.

Family Status

This matter refers to a request for parental leave that was submitted to the respondent in October 2017. When his request for parental leave was approved, the complainant asked if he could change the dates, and he was not permitted to do so. Ms McNamara submitted that as this complaint was submitted to the WRC on October 5th 2018, it is out of time.

Religion

The complainant alleges that the “you look like a terrorist” remark discriminated against him indirectly on the basis of religion, because his mother is married to a Muslim and his grandmother is a Muslim.   The complainant raised this issue as part of his compendium of grievances in April 2018, two years after the remark was made. Despite the time lag, the company made efforts to ascertain what was said in 2016 and the manager who responded to this grievance concluded that the comment, if it was said, was unacceptable.

It is the respondent’s position that this complaint cannot succeed because the complainant has not made out a case that he was treated less favourably that another worker in the same situation. She argued that, if the comment was made, it may have been hurtful, “it cannot form a fact from which it can be presumed that discrimination has occurred.”

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he has been treated less favourably than his colleagues in respect of his age, gender, disability, family status and religion.

The Primary Facts

These complaints were submitted in the context of the employer’s decision to invoke the attendance management policy to deal with the complainant’s sickness absence.

Family Status

This complaint relates to a request to the complainant’s request in October 2017 to change the dates of parental leave which had been approved. His request was refused. As this complaint was submitted to the WRC in October 2018, it is outside the six-month time limit set out at section 77(5)(a) of the Employment Equality Act 1998 – 2015.

Religion

The investigation into the complainant’s grievance about this matter indicates that the “you look like a terrorist” remark may have been made in 2016. As it was submitted to the WRC in October 2018, like the previous complaint regarding family status, it is outside the six-month time limit for submitting complaints to the WRC. If the complaint had been submitted within the time limit, I would have found that it was frivolous, because, in his evidence, the complainant said that the person alleged to have made the remark did not know that his grandmother and his mother’s husband are Muslims.

Age

This complaint is about the problem that the complainant had when he wanted Ms Fitzsimons Belgaid to represent him at the capability meetings and grievance meetings. The company refused because its policy provides that an employee may be represented by a colleague or a union official.

The reason the complainant was not permitted to be accompanied by Ms Fitzsimons Belgaid was because she is his mother. Any perception that this refusal or any discussion about the issue was discriminatory on the age ground is completely speculative. I have concluded that there is no substance to this complaint.

Gender

The complainant asked if he could leave work every day at 5.00pm and he complained that, unlike some of his female colleagues, this request was refused and he was permitted to leave at 5.00pm only on three days. In his evidence, he also said that he was eventually allowed to leave at 5.00pm every day. On this basis, I find that there is no substance to this element of his complaint on the ground of gender.

The complainant produced no evidence to support his allegation that he was paid a lower salary than his female peers.

Under the heading of gender, the complainant alleged that a female colleague was not sanctioned when she had the same level of absenteeism as him. This was investigated by the HR Business Partner who found that, unlike the complainant, the female employee had not yet breached the 10 days and three occasions threshold for invoking the capability policy.

It is my view that there is no substance to these complaints about discrimination on the ground of gender.

Disability

“Disability” is defined in section 2 of the Employment Equality Acts as:

“(a)   the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)   the presence in the body of organisms causing, or likely to cause chronic illness or disease,

(c)   the malfunction, malformation or disfigurement of a part of a person’s body,

(d)   a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)   a condition, illness or disease which affects a person’s thought processes, perceptions of reality, emotions or judgements or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”

The complainant claims that the company discriminated against him because he has a disability.   In his evidence at the hearing, he said that he has asthma and, for the duration of the latter part of his employment, he suffered from workplace stress. On the form that he submitted to the WRC, he said that the “company failed in its duty of care to provide me with a safe working environment and subsequently treated me less favourably due to my increasing mental health and respiratory related issues which were all affected by the inability of the company to take the situation seriously and resolved (sic) the issues.”

I find it difficult to accept that the company did not take the complainant’s issues seriously.   Over the course of less than six months, nine senior managers and various members of the HR team, most of whom were not based in Ireland and who travelled specially from the UK, were involved in efforts to manage the problems associated with his attendance and his grievances. From this perspective I am certain that no other employee required so much of an investment. In October 2017, the complainant wrote that his line manager was a huge help to him in dealing with his personal problems and in December of the same year, he recognised that HIB was engaged positively with him on the issue of attendance and other issues and he acknowledged that she was trying to help him.

Ms McNamara referred to the Labour Court case of A Government Department and a Worker, EDA 094, where the chairman, Mr Duffy, stated that the Employment Equality Act “is a remedial social statute” and the definition of disability “ought to be construed as widely and as liberally as possible consistent with fairness.” He went on:

“Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.”

In addition to reaching a conclusion on these matters in accordance with the applicable law, I must have some regard to the requirement for common sense.   Workplace stress is not a disability and the complainant produced no medical evidence to show that he suffered from a mental illness. In respect of his asthma, the respondent provided the assistance requested by the complainant, in the form of a heater under his desk and help to manage the temperature in the office on Mondays. No other assistance was requested to help him to manage this condition. It is my view that the complainant has failed to establish facts to show that he was suffering from a disability.

Conclusion

I refer to the Labour Court appeal of Graham Anthony & Company Limited against the decision of the Equality Officer in respect of the complaint of Mary Margetts, EDA 038.   This was a complaint by Ms Margetts that she was discriminated against on the grounds of her marital status, her family status and her age; however, the point made by the Chairperson of the Court, Ms Jenkinson, is relevant here:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Having examined the primary facts adduced by the complainant, it is my view, that, they are inadequate to show that, on the balance of probabilities, he was discriminated against on any of the grounds alleged. For this reason, the burden of proving the absence of discrimination does not shift to the respondent.

I have concluded that the complainant has failed to discharge the burden of proof which requires him to establish the primary facts that can be relied upon to establish a complaint of discrimination. Based on this conclusion, I have decided that his complaint fails.

On the complaint form he submitted to the WRC, the complainant said that he received three weeks’ pay in lieu of notice, and it is his view that he should have received four weeks’ pay. He said that when he submitted his notice on August 29th 2018, he wasn’t given a “cooling off period.” He claims that he was not in the right state of mind to resign.

At the hearing, Ms McNamara said that the complainant resigned when the company was making efforts to have him examined again by the OHC. At the time, there were further disciplinary issues that had to be addressed and, on this basis, there was no reason for the company to re-consider the complainant’s decision to resign. He was given three weeks’ pay in lieu of notice in circumstances in which he resigned from his job and was not entitled to notice.

While he may not have been feeling well in August 2018, when the complainant resigned from his job, he had the support of Ms Fitzsimons Belgaid, a professional HR consultant and an experienced advocate. As he resigned, he was not entitled to notice from his employer or to pay in lieu of notice, although the respondent decided to pay him for three weeks.

As I have concluded that the complainant was not entitled to pay in lieu of notice, I have decided that this complaint is not upheld.

The complainant was due to take parental leave in October 2017, but he asked if he could change the dates that had been approved. His request was refused and he argues that, on this basis, he was discriminated against on the ground that he is a parent.

It is the respondent’s case that, as this matter refers to a request that was submitted to the respondent in October 2017, as a complaint of discrimination that was submitted to the WRC on October 5th 2018, the complaint is out of time.

This complaint has been raised already under CA-00012240-002, the complaint under the Employment Equality Act.

Section 77(5)(a) of the Employment Equality Acts sets out the time-frame within which a complaint must be referred to the WRC:

“Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates, or, as the case may be, the date of its most recent occurrence.”

Paragraph (b) provides that where there is “reasonable cause,” there may be an extension of the time limit from six to 12 months to submit of complaint of discrimination. The complainant did not apply for an extension of time to consider this complaint and I find therefore, that it has been submitted in excess of the permitted time limit of six months.

It is apparent that this complaint has been submitted after the expiry of the six-month time limit permitted at section 77(5)(a) of the Employment Equality Act. On this basis, I conclude the investigation and find against the complainant.      

Constructive dismissal, discrimination on various grounds, minimum notice, parental leave