Complainant

Respondent

Anonymised Parties

An Advertising Sales Manager

A Publication Company

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-00030107-001

07/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00030107-002

07/08/2019

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

CA-00030107-003

07/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030107-004

07/08/2019

The Complainant is an Advertising Sales Manager employed by the Respondent from 15th November 1993 until 3rd August 2019.

This complaint was received by the Workplace Relations Commission on 7th August 2019.

The Complaint is in four parts, these are as follows:

CA – 00030107 – 001 – complaint referred under section 8 of the Unfair Dismissals Act, 1977.

CA – 00030107 – 002 – complaint referred under section 6 of the Payment of Wages Act, 1991.

CA – 00030107 – 003 – complaint referred under section 77 of the Employment Equality Act, 1998.

CA – 00030107 – 004 – complaint referred under section 27 of the Organisation of Working Time Act, 1997.

The Complainant worked as an Advertising Sales Manager for the Respondent since entering into a contract of employment in 1993. In total the Complainant had served a total of 23 years of employment for the Respondent until his employment ended as a consequence of the Complainant suffering a catastrophic breakdown of his health on 6th September 2016.   The Complainant was unable on health grounds to return to work since that date and eventually resigned on 3rd July 2019.

EVIDENCE TO BE ADDUCED

On diverse dates between 2013 and 6th September 2016 the Complainant was subjected to repeated bullying, demeaning and belittling behaviour and harassment by the Respondent, its servants or agents, which created a workplace atmosphere and environment which was toxic in nature culminating in the Complainant sustaining catastrophic breakdown on 6th September 2016.

The Respondent went into Examinership and/or was in significant financial difficulties in 2013 and was subsequently brought out of examinership in June 2013 when a consortium took over the running of the business owned and operated by the Respondent company. From that point on there was a change in the culture of the workplace with the appointment of a new Chief Executive Officer. Thereafter and over a period of time persistent, constant and sustained pressure was placed on the Complainant in his role as Advertising Sales Manager. Moreover, the atmosphere in the workplace became pressurised, aggressive and intolerant to such a degree that there was an ever-present anxiety in the workplace.   This situation was ongoing and resulted in the Complainant sustaining the injuries evidence and put forward in this submission.

The Complainant and his co-workers were repeatedly subjected to or witnessed acts of intimidation, aggression and belittlement by the Respondent’s appointed management who regularly shouted and screamed at staff, such as the Complainant in this case.

The Respondent did not provide or offer any Human Resources Department or other similar support facilities to the Complainant and the standing position adopted by the Respondent to its employees in respect of the workplace complaints or difficulties was that those who could not cope with the workplace environment could resign or leave. The Complainant to his detriment, continued to work under this oppressive environment and by reason of which he has sustained the injuries upon this submission is grounded.

The Complainant’s Solicitor wrote to the Commercial Director of the Respondent on 4th October 2016 seeking a copy of the staff handbook/policies and procedures in the workplace in order to avail of the procedures open to him. No response was received.

The Complainant’s Solicitor wrote to the Commercial Director of the Respondent on 17th February 2017 seeking information regarding pay which the Complainant needed for the Department of Social Protection and his mortgage provider and again received no response.

The Complainant’s Solicitor wrote to the Commercial Director of the Respondent on 27th March 2018 calling on the Respondent to admit liability in respect of the personal injuries suffered by the Complainant and again received no response.

The Complainant’s Solicitor wrote to the Commercial Director of the Respondent on 28th January 2019 requesting that any correspondence regarding developments or changes in the workplace be sent to the Complainant’s home, as the Complainant had read some reports in the media about his employer and was anxious to be kept informed.

The Complainant’s Solicitor wrote to the Commercial Director of the Respondent on 3rd July 2019 tendering his resignation and seeking outstanding pay, including holiday pay and a “back month”, but again received no response.

LEGAL SUBMISSIONS

Constructive Dismissal – Unfair Dismissals Act 1977

The Complainant had worked for some 26 years with the Respondent prior to his resignation in 2019.   As a direct consequence of the atmosphere in the workplace his health was severely affected and was diagnosed with “severe Post Traumatic stress disorder as a result of exposure to a work situation which was traumatic for him.

The Complainant tried to have his issues resolved by engaging with the Company and first sought a copy of the procedures that were to be followed in the workplace on 4th October 2016. This request, and subsequent letters to the Respondent were all ignored and no response was forthcoming.

The Complainant felt he was left with no option but to terminate his employment and move on to new employment for his own mental health and wellbeing. He was also entitled to infer, from the employer’s conduct, that the employer was no longer going to be bound by the contract of employment and was not prepared to engage with the Complainant in order to provide a safe place of work and deal with the Complainant’s issue, was not prepared to furnish a grievance or dignity at work or any policy or procedure by which the Complainant could have his problem addressed, and by reason of the persistent ignoring of all correspondence on behalf of the Complainant left the Complainant with no option but to resign from his employment.

The Unfair Dismissals Act 1977 section 1, defines a dismissal where the employee is entitled to resign as follows:

“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 as or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

Payment of Wages Act 1991

The Complainant was obliged to work a back month when he first commenced employment in November 1993 as he was obliged to work for 2 months before being paid one month’s wages.

As the Complainant resigned on 3rd July 2019 he was then entitled to outstanding pay, untaken holiday pay, and any other entitlements arising from the employment.   The date of contravention therefore, was on or around 3rd July 2019 and his complaint was submitted on 7th August 2019.

Discrimination Employment Equality Act 1998

The Complainant was a person with a disability from the time he suffered the catastrophic breakdown in his health as a consequence of the situation at work in September 2016.

The employer failed to make reasonable, or any, accommodation for his return to work or for his issues to be dealt with, notwithstanding the attempts to have his situation resolved and the copious correspondence on his behalf to arrive at a resolution.   The Complainant had worked in this employment for nearly a quarter of a century and was anxious to return, provided his problems could be resolved.

The Complainant kept in regular contact and sought to be kept in the loop as to developments in the Respondent’s business but was ignored, left to “wither on the vine” and was not even furnished with the most basic workplace procedures for example, dignity at work or grievance policy / procedure.

Hours of work – Organisation of Working Time Act 1997

The Complainant did not receive his annual leave or public holiday entitlements on leaving the employment in contravention of the Organisation of Working Time Act 1997.

Conclusion

The Complainant respectfully submits that the four foregoing complaints are well founded and ought to succeed. The Complainant would also ask the WRC to take into account the Complainant’s long service to the Respondent and the appalling off hand, disdainful manner with which he was treated when he suffered his illness in September 2016, his efforts to resolve the situation and resume the employment, and ultimately his forced resignation by reason of the unreasonable conduct of the employer.

The Complainant’s complaints, to the extent that grounds ever existed at all, (which is denied) are out of time due to the fact that they a have been brought more than six months since any act which might possibly have given grounds for the complaints – which grounds are denied. Accordingly, the Workplace Relations Commission has no jurisdiction to hear the Complainant’s claims, or any of them.

Strictly without prejudice to the preliminary issue raised above, the Respondent makes the following submissions:

The Complainant was not constructively dismissed.

The Complainant claims that he resigned on 4th August 2019 and commenced alternative employment two days later on 6th August 2019. The Complainant was in receipt of Permanent Health Insurance (“PHI”) and the Complainant notified the Complainant’s PHI insurer, that he had resigned from the Respondent and that he had a new job but that he never notified the Respondent that he had resigned. That position persists to this day.

The Complainant went out on sick leave on 6 September 2016 and subsequently went on PHI approximately six months later, having been paid for the first six months of his sick leave.

The Complainant states in his Complaint Form that he was forced to leave his employment (in August 2019) by reason of the Respondent’s conduct before and during his illness which illness was caused by the tone and tenor of the workplace in which he was obliged to work. The Complainant has never, ever articulated any instance of inappropriate behaviour in the workplace, either before he went out on sick leave, during his sick leave or to this day, including on his complaint form. The Complainant makes general, sweeping statements without any specifics whatsoever.

The Complainant alleges constructive dismissal, asserts a pay claim, alleges discrimination (on the grounds of disability) and asserts a claim under the heading of hours of work in circumstances where he has not been in the workplace for just under three years.

The Complainant’s pay claim is patently bogus and contrived given that he was on PHI for which he applied. Even on the Complainant’s own case, he resigned and commenced work elsewhere within two days. Assuming that his claim respect of pay relates to pay in lieu of notice, he is not entitled to notice in circumstances where he resigned (if silently, without telling the Respondent) with immediate effect.

The Complainant was paid PHI during his illness and he is not entitled to holiday pay.

The Complainant makes a discrimination allegation which is extremely insulting to the Respondent which would never and did not, discriminate against an employee with a disability and it did not discriminate against the Complainant.

For the avoidance of doubt, every allegation contained in the Complainant’s Claim Form – to the extent that there are any express or implied– are completely denied.

This Claim is a blatant abuse of the Workplace Relations Commission process and the claim should be dismissed.

On receipt of the Complainant’s Outline Legal Submission the Respondent’s representative replied as follows:

As regards the substance of the Submissions, it is patently obvious from the Complainant’s complaint and compounded by these Outline Legal Submissions, that the Complainant seeks to run a personal injury claim before the Workplace Relations Commission (“WRC”).

When one considers the Submissions and the appendices, in particular the Report of the Consultant Psychiatrist - which is undated - the Complainant relies on a completely unspecified “exposure to a work situation which was traumatic for him”. The Complainant last worked for the Respondent on 6 September 2016 and did not see the Consultant Psychiatrist until February 2017. If this claim is allowed to proceed at all, the Respondent will take the strongest possible objection to this Report being admitted in evidence.

The letter dated 27 March 2018, written by the Complainant’s solicitor (who is representing the Complainant before the WRC and who drafted the Complainant’s Outline Legal Submissions) makes it crystal clear - not that there could ever have been any doubt about it - that the Complainant and his solicitor know now and knew full well that if the Complainant wished to pursue a personal injury claim then the appropriate forum is in the Courts, having first obtained the Injuries Board’s authorisation to issue proceedings. It goes without saying that the WRC has no jurisdiction to hear a personal injuries action and the claim should be struck out.

The allegation that there was no response to the Complainant’s solicitor’s letter dated 4 October 2016 is simply not true. The Respondent engaged with the Complainant’s solicitor and the Complainant was paid in full for the first six months of his absence and he then went on Permanent Health Insurance.

The Complainant’s suggestion that an employer is obliged to keep an employee who is on long term sick leave and who is receiving Permanent Health Insurance, up-to-date on matters in the workplace is a fantastical proposition with no basis in law whatsoever.

The Complainant’s claim that he is entitled to one month’s notice because he worked a month more than 26 years ago is not only preposterous, but it reflects the overall nature of this claim. The Complainant resigned with immediate effect (although it is not clear to the Respondent how exactly the Complainant says he effected that resignation) and therefore he is not entitled to notice or pay in lieu of notice.

As has previously been submitted by us, we believe the Complainant’s Claim to be an abuse of the WRC’s process and should be dismissed. The Complainant’s Outline Legal Submissions reinforce this view and we repeat our request that the claims be dismissed.

CA – 00030107 – 001 – complaint referred under section 8 of the Unfair Dismissals Act, 1977.

The Complainant is alleging that he was constructively dismissed from his employment.

It is alleged by the Complainant’s representative that the Complainant was left with no option but to terminate his employment and move on to new employment for his own mental health and wellbeing. He was also entitled to infer, from the employer’s conduct that the employer was no longer going to be bound by the contract of employment and was not prepared to engage with the Complainant in order to provide a safe place of work and deal with the Complainant’s issue, was not prepared to furnish a grievance or dignity at work or any policy or procedure by which the Complainant could have his problem addressed…………..

I note that the Complainant had the benefit of legal representation as far back as 2016 and would have been informed of how to proceed with a grievance against his employer.

The EAT in the case of Daniel O’Gorman v Glen Tire Company Limited (UD 2314 / 2010) held that it is crucial in a constructive dismissal case that the employee fully informs the employer of the complaints being made against him and gives the employer the opportunity to resolve the problems.

There is also a requirement in any allegation of constructive dismissal that the internal procedures be substantially utilised prior to any termination of contract. In Conway v Ulster Bank [ UD 474 /1981] the EAT considered that the Complainant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’. Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning.

I note that a request was made to issue a copy of an employee handbook to the Complainant, this request is dated 4th October 2016 and relates to any company policy in place for sick pay. There is no mention in this letter of any grievance the Complainant may have with his employer.

Having considered the complaint as presented under the Unfair Dismissals Act, 1977 I have decided that the complaint is not well – founded and therefore fails.

CA – 00030107 – 002 – complaint referred under section 6 of the Payment of Wages Act, 1991.

The Complainant was obliged to work a back month when he first commenced employment in November 1993 as he was obliged to work for 2 months before being paid 1 month’s wages.

In this situation the Complainant after being absent on sick leave should have been paid one month’s salary at the end of the first month of absence, he was placed immediately on sick pay and then onto Permanent Health Insurance payments.

In relation to the complaint as presented under the Payment of Wages Act,1991 I have decided that the complaint is well founded and order the Respondent to pay a sum equivalent to one month’s salary i.e. €4,588.38 gross.

CA – 00030107 – 003 – complaint referred under section 77 of the Employment Equality Act, 1998.

The Complainant’s representative states “The Complainant was a person with a disability from the time he suffered the catastrophic breakdown in his health as a consequence of the situation at work in September 2016”.

There was no request for any reasonable accommodation on behalf of the Complainant, this being the case how was the Respondent to know if the Complainant was in a position to return to work.

As per the complaint form completed by the Complainant the last date of discrimination was 5th July 2019. At this time the Complainant was on sick leave. I note that the Complainant’s representative wrote to the Respondent on 3rd July informing them that it was the Complainant’s intention to resign from employment with the Respondent. There was no reason contained within this letter as to why the Complainant was resigning. It had been established at the hearing that the Complainant was offered other employment late in June 2019.

Having considered the complaint as presented under the Employment Equality Act, 1998 I have decided that no act of discrimination took place within the cognisable period. The complaint is not well-founded and therefore fails.

CA – 00030107 – 004 – complaint referred under section 27 of the Organisation of Working Time Act, 1997.

Section 86(1) of the Workplace Relations Act 2015 commenced on 1st August 2015. Section 86(1) of the 2015 Act made amendments to the Organisation of Working Time Act 1997 to provide for implementation of CJEU rulings on accrual of annual leave entitlement during sick leave. These CJEU rulings relate to the requirements of the EU Directive on Working Time (consolidated Directive 2003/88/EC).

Section 19 of the Organisation of Working Time Act is amended to read as follows:

(1A) For the purpose of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was –

a)       At his or her place of work or at his employer’s disposal, and

b)      Carrying on or performing the activities or duties of his or her work.

For the period April 2018 until the end of July 2019 the Complainant has a statutory entitlement to 26.66 days annual leave, I calculate this to be worth € 6,116.31 and I now order the Respondent to make this gross payment to the Complainant.

In relation to Public Holidays during the period of certified sick leave the Complainant is entitled to be paid for any Public Holiday falling within the first 26 weeks of absence. In the instant case the Complainant received his full pay for the first six months of his absence. There is no payment due to him in relation to Public Holidays.

Complaints numbered CA – 00030107 – 001 and CA – 00030107 – 003 are not well-founded and fail.

Complaint CA – 00030107 – 002 is well founded and I order the Respondent to make a gross payment of €4,588.38 to the Complainant.

Complaint CA – 0030107 – 004 is well founded and I order the Respondent to make a gross payment of € 6,116.31 to the Complainant.

Amounts awarded to the Complainant should be paid to him within 42 days from the date of this decision.

Unfair Dismissals Act, 1977. Payment of Wages Act, 1991. Employment Equality Act, 1998. Organisation of Working Time Act, 1997.