UDD2022

The Complainant was employed by the Respondent as a Security Officer from 7^thJuly 2016 until 1^stSeptember 2017 when his employment ended.

The fact of dismissal is in dispute.

Summons

Following the hearing of the appeal, the Court, in accordance with the provisions of the Industrial Relations Act, 1946 at Section 21(1)(c), required the Complainant to provide a copy of an e-mail dated 30^thJune 2017 from him to Mr CM of the Respondent. That e-mail was provided to the Court on 26^thMarch 2020 and the Respondent was given an opportunity to respond in respect of its content. That response was received on 3^rdJune 2020.

Summary position of the Complainant

The Complainant submitted that, following the commencement of his employment on 7^thJuly 2016, he worked for the first four or five months without seriousincident. He did however experience some raised voices and shouting from his site supervisor Mr TO’R including in connection with minor matters such as a spelling mistake or when a member of the customer’s staff spoke to the Complainant.

After a period of five months the Complainant began to experience greater abusive behaviour from Mr TO’R including verbal abuse.

In February 2017 the Complainant reported his concerns to the operations manager, Mr CM. Mr CM undertook to speak to Mr TO’R. Some days later Mr TO’R approached the Complainant and asked him why he had spoken to Mr CM. Mr TO’R advised him to ‘watch his back’. The Complainant reported this further incident to CM.

The Complainant submitted that he subsequently had anotherinteraction with Mr TO’R following an engagement by the Complainant with a member of staff of the customer. He submitted that Mr TO’R had shouted at him and locked him in a room. He reported the matter to Mr CM who indicated that he would organise a meeting, but this never happened.

The Complainant submitted that, following this interaction, Mr TO’R reduced the number of shifts allocated to him. The Complainant reported this matter to Mr CM who organised a meeting which was attended by the Complainant, Mr CM and Mr TO’R. At that meeting Mr TO’R shouted at the Complainant. The Complainant asked Mr CM to forward the matter to the HR Department. He never heard any more about the matter and believes that the complaint was never forwarded to the HR Department.

At that point the Complainant advised Mr CM that he was upset that his concerns were not being addressed and advised him that he would leave the employment if the matter was not addressed.

He was subsequently assigned to the car park and felt that this assignment isolated him. He contacted Mr CM by e-mail on 10^thAugust to complain of bullying and harassment and to ask that the matter be referred to the HR department. He advised Mr CM on 11^thAugust that he was unable to work due to illness and depression caused by his treatment at work and provided two sick notes to that effect.

Mr CM arranged a meeting on 17^thAugust 2017 with the Complainant. The Complainant asked that a member of the HR department be present but that did not occur. At that meeting he was pressured into signing a document agreeing that he would not be represented. The meeting terminated due to the behaviour of Mr CM.

When the Complainant was fit to return to work, he informed the persons arranging the roster but was not included in same. He contacted the control room, the HR department and his trade union but was unable to establish why he was left off the roster.

As a result of these events the Complainant felt forced to give notice on 23^rdAugust 2017.

He submitted that he was forced to resign having had no adequate response to his complaints of bullying and harassment and having been left off the roster. He contacted the Respondent on numerous occasions but failed to secure a place on the roster.

He submitted that he had complained to the Respondent on many occasions as regards his treatment prior to his illness but his concerns were not dealt with. The Complainant had asked that the matter be referred to the HR department but that did not happen. No formal investigation into his complaints was undertaken.

Summary evidence on behalf of the Complainant

The Complainant gave evidence to the Court in accord with the written submission made on his behalf.

He stated that following five months of employment Mr TO’R began to cause problems. Mr TO’R had told him in December 20016 and January 2017 that he was “not suitable for the job”, told him he was a ‘foreign ba***rd’ and told him to ‘watch his back’.

He said he complained of bullying and harassment to Mr CM including by e-mail on 30^thJune 2017 and again on 10^thAugust 2017. He said that he had never, before 23^rdAugust 2017, given notice of an intention to leave his employment and he never sought and secured an extension of notice.

He stated that he had repeatedly made Mr CM aware of his bullying and harassment by Mr TO’R but that Mr CM had not responded adequately or at all to any such complaints.

Under cross examination the Complainant agreed that by e-mail dated 12^thJuly 2017 he had advised Mr CM that he would ‘probably finish on 15^thAugust’. He stated that he had never intended to give his notice. He agreed that he had by e-mail of 17^thJuly 2017 asked Mr CM whether he could give his notice by e-mail. He also agreed that by e-mail dated 17^thJuly 2017 he had referred to the Respondent having a need to arrange cover if he ‘finished on the 15^th’ but that he had spoken to the ‘club and they allowed me to delay my arrival there in order to help you out with my replacement’. He acknowledged that in the same mail to Mr CM he referred to 25^thAugust as the date he would finish,and that the customer’s staff were arranging a leaving party for him.

He also agreed that by e-mail dated 27^thJuly 2017 he had written that he had ‘no words to describe everything you have done for me since the first day’.

He said that none of the e-mails referred to amounted to notice of an intention to leave his employment.

He said he had left his employment because he ‘could take no more’ and because of bullying and harassment in his employment. He said that his employer’s failure to deal with his complaints left him unable to work.

He stated he had earned €400 to €450 per week and that, while he held a security licence, he did not apply for a security job following the termination of his employment. He said that he secured employment on a lesser rate of pay eight months after he left this employment. He said that he had been certified unfit for work for three months after the termination of his employment.

Summary position of the Respondent

The Respondent submitted that the Complainant had not been forced to leave his employment by reason of the conduct of his employer but rather he had voluntarily terminated his employment by way of resignation in order that he could pursue an alternative career in sports management. The Complainant did not act reasonably in relation to the alleged constructive dismissal in that he failed to make any attempt to resolve the alleged bullying internally before resorting to making a claim of constructive dismissal.

The Respondent submitted that the Complainant’s employment was without incident until July 2017. On 17^thJuly 2017 the Complainant contacted the contract manager, Mr CM, and informed him that he was terminating his employment. He stated that the reason he was leaving was that he had accepted another job in the United Kingdom as a football coach. His resignation was accepted,and the employment relationship was terminated amicably and both parties agreed to have the Complainant work out his notice period of two weeks.

On 31^stJuly the Complainant again contacted CM and sought an extension to his notice period as his new role in the UK was not ready for him to take up. Again, due to the amicable nature of the termination, the Respondent agreed that the Complainant’s notice period would be extended by a further two to three weeks.

In or around the 10^thof August the Complainant made a complaint through the grievance procedure against his supervisor Mr TO’R. Specifically, he complained of “consistent harassment / bullying” which had caused him to become depressed. Mr CM met with the Complainant on or about 14^thAugust in an effort to deal with the matter informally. The Complainant attended that meeting and agreed to proceed without a representative. He signed a disclaimer to that effect. The meeting lasted approximately 15 minutes and was terminated by Mr CM following an outburst from the Complainant.

The Respondent submitted that the Complainant was obliged to act reasonably and failed to do so when he failed to exhaust all available internal procedures as outlined in the Respondent’s handbook. The Complainant was well aware of the grievance procedure and despite this he chose to make one single complaint, have one meeting with the Respondent and ultimately to walk away from that meeting without any constructive engagement.

The Complainant was a member of a Trade Union and failed to engage with the Union prior to the termination of his employment.

The refusal of the Complainant to exhaust or engage in the grievance procedure is unreasonable and, having regard to the case law of this and other Courts, his behaviour should exclude him from successfully claiming constructive dismissal.

Summary Testimony on behalf of the Respondent

Mr CM, the Respondent’s contract manager, gave evidence on behalf of the Respondent.

He stated that in February 2017 the Complainant had indicated that he wanted to move to the UK. Mr CM had put the Complainant in touch with relevant staff of the Respondent in the UK.

Mr CM stated that the first complaint received from the Complainant was received on 10^thAugust 2017. It was his opinion that the Complainant and Mr TO’R got along very well until they appeared to ‘fall out’ around the end of June / beginning of July 2017.

The complaint of 10^thAugust 2017 made mention of bullying and Mr CM called the two parties together for a meeting. The relevant procedure of the Respondent did not provide for such a meeting but the witness’ experience told him that it would be a good thing to do.

The meeting was held on 17^thAugust and terminated after five minutes because the Complainant ‘lost the head’. Following the termination of that meeting Mr CM did no more to address the complaint raised by the Complainant.

Mr CM stated that the Complainant always planned to leave the employment in or around August of the year. That fact was widely known by staff of the client company.

The witness stated that no issues were raised with him by the Complainant prior to 10^thAugust 2017. He acknowledged that he may have been made aware of some issues in June or July of 2017,but he could not recall what they might have been.

Mr CM did not recall receiving an e-mail from the Complainant dated 30^thJune 2017 but acknowledged that it was possible that he had done so.

Mr CM said that he reported the events of 17^thAugust to his supervisor and acknowledged that he should perhaps have made contact with the Respondents’ HR department.

Mr CM, when questioned for clarification by the Court, confirmed that the policy of the Respondent in instances where complaints of bullying had been made, was that any allegation would be treated seriously and confidentially with a thorough and immediate investigation taking place. He confirmed that no such investigation was initiated in response to the Complainant’s complaint of bullying and harassment made on 10^thAugust 2017. He also acknowledged that the Respondent’s procedure made no provision for a meeting such as the one convened on 17^thAugust in response to the Complainant’s complaint of 10^thAugust.

Addendum to the submission of the Respondent: In a written supplementary submission given in response to the e-mail of 30^thJune 2017 as supplied to the Court by the Complainant after the conclusion of the Court’s hearing, the Respondent submitted that Mr CM had in fact met with the Complainant and Mr TO’R informally to discuss the content of the mail of 30^thJune and that the matter was dealt with in that manner to the satisfaction of the Complainant.

Relevant law

Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal 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 was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

• 6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Complainant is alleging constructive dismissal and the fact of dismissal is in dispute. The initial onus of proof therefore rests with the Complainant to establish facts to prove that he would never have resigned from the position but for his employer’s behaviour.
The Act at Section 1 as set out above articulates the circumstances in which a resignation may amount to what is commonly termed an unlawful constructive dismissal.

It is trite law that such a constructive dismissal can arise where the employer’s conduct amounts to a repudiatory breach of the contract of employment which would “entitle” the employee to resign his position, often referred to as the “contract test”.

As held in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332. A repudiatory breach of the contract arises where an employer is

• “guilty of conduct which is 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”

It is contended that the Complainant was bullied and harassed to the degree that he could not tolerate the conditions of his employment any longer and it is further contended that when the circumstances of the alleged bullying and harassment were brought to the attention of the Respondent, the written terms of the employment as applicable to such matters were ignored by the Respondent and that the Respondent failed to respond in any adequate manner to the situation.

The Respondent contended, including in evidence, that the Complainant had wanted to leave the employment since February 2017 and gave notice in July 2017. The Respondent was unable to advise the Court when precisely that notice was given. The witness for the Respondent confirmed in evidence that notice is normally given in writing (by letter or e-mail) but that no trace of any such written notice served by the Complainant was available or could be found.

The Complainant denied that he had ever served notice prior to 23^rdAugust 2017 or that he had ever wished to leave his employment other than in an effort to ‘get away’ from the pressure of bullying and harassment. He accepted that he had asked the Respondent to assist him in finding a job in the UK with G4S but contended that his efforts in that regard were also related to the pressure of bullying and harassment.

The Court finds that the Complainant’s credibility as regards his intention to serve notice or the fact of his having done so was, in the view of the Court, undermined somewhat by certain e-mails he had written to the Respondent in July 2017.

The Complainant contended that he had made a written e-mail complaint to Mr CM regarding his treatment by Mr TO’R on 30^thJune 2017 and had received a reply from Mr CM. Mr CM contends that he responded to that complaint by meeting the Complainant and Mr TO’R informally.

Mr CM stated in evidence that the first time he heard of a complaint of bullying and harassment was on or about 10^thAugust 2017. He was not able to produce the document of complaint but did confirm in evidence that it was not the e-mail of 10^thAugust from the Complainant and addressed to TO’R and cc’d to CM which had been supplied to the Court as part of the Respondent’s papers. That document had referred to bullying and harassment by TO’R of the Complainant, had carried assertions that the Complainant felt depressed and emotionally damaged at work and that he felt isolated in his assigned work station.

When asked in evidence to identify the provenance of a document in the Respondent’s submission which was undated but purported to be a communication from the Complainant to Mr CM which asserted that the Complainant would lodge a complaint with the Gardai over the serious threats made by Mr TO’R,the witness for the Respondent was unable to do so. That document also asserted that the Complainant was very concerned and depressed and that he might need to see a doctor very soon as he found it hard to cope with ‘this unfair and abusive situation’. The witness did state in evidence that the nature of bullying outlined in the document was similar to that outlined in the missing letter of complaint received on or about 10^thAugust 2017.

The witness for the Respondent agreed that his decision to convene a meeting with the Claimant on 17^thAugust was not in pursuance of any procedure in place in the Respondent’s employment. That procedure requires a response by way of an immediate and thorough investigation. He agreed that, following the collapse of his informal meeting, no further steps were taken by the Respondent to address the Complainant’s complaint of bullying and harassment notwithstanding that he, Mr CM, had advised his manager of the fact of the complaint. In fact, the witness agreed that no response to the complaint other than the informal meeting was forthcoming between the date of the complaint and the date of termination of the Complainant’s employment.

It is not for the Court to determine whether the complaint of bullying and harassment was supported by the facts of the matter. In any event, the Respondent never instituted any form of investigation of the matter and consequently the Court is deprived of any objective assessment of the complaints as made by the Claimant or indeed of any understanding as to whether the allegations are accepted or rejected by the Respondent.

The Court finds that at least two complaints of bullying and harassment were made by the Complainant on the 30 June and the 10 August 2017. The Court finds, on the admission of the Respondent itself, that the Respondent did not follow its own procedure at all in dealing with any complaint of bullying and harassment made by the Complainant.

The procedures for dealing with complaints of bullying and harassment are set out in the written policy of the Respondent and referred to in the written contract of employment where it states:

• “It is our policy to take all reasonable steps to provide a work environment free from bullying / harassment. Any allegation will be dealt with seriously and confidentially, with a thorough and immediate investigation.”

The Court concludes therefore, on the basis of the facts established, that the Respondent did undermine an explicitly stated core element of the contract of employment and that failure amounted to a repudiatory breach of that contract. In those circumstances, the Complainant was ‘entitled’ to accept the repudiation and consider himself dismissed.

Having reached that conclusion, the Court need not go any farther. However, having set out the relevant legal context for its consideration of the within appeal, the Court has also considered the question of whether the actions of the employer were unreasonable to the degree that the Complainant would, on that account, also have been ‘entitled’ to terminate his employment. The Complainant has made complaints of bullying and harassment to the Respondent on two occasions and no meaningful response to those complaints was forthcoming. No investigation took place and nothing beyond informal meetings occurred in response to complaints of alleged behaviour of a type which the Respondent, in its own written policy, described as unacceptable. In the view of the Court that sequence of events or non-events represents unreasonable behaviour by the employer such as to justify the Complainant in terminating his employment.

The Respondent has submitted that the Complainant failed to exhaust internal procedures in addressing any concern he had while in employment and contends that this failure is fatal to the within complaint. The Court does not accept that submission. The Court has been provided by the Respondent with its policy in respect of Bullying and Harassment. There is no dispute that a complaint alleging such behaviour was made by the Complainant. It is clear to the Court that, having regards to facts as set out, that it is the Respondent and not the Complainant which is guilty of a failure to exhaust available internal procedures.

Redress

Section 7(1)(c)(i) of the Act, as amended by s.6(a) of the 1993 Act provides: -

• (i)if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

• (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
  (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
  (b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,
  (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,
  (d)(not applicable),
  (e)(not applicable), and
  (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

For the reasons set out above the Court decides that the Complainant was unfairly dismissed from his employment. The Court orders that compensation in the amount of €15,000 be paid to him by the Respondent.

The decision of the Adjudication Officer is varied.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
MK______________________
3 July 2020Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.