Complainant

Respondent

Anonymised Parties

Senior Health and Safety Specialist

Energy provider

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-00027777-001

15/04/2019

This is a complaint of constructive dismissal.

The complainant commenced work with the respondent on 2/9/2007 as a Senior Health and Safety specialist. He resigned on 4 February 2019.

His salary was €4750 per month.

He submitted his complaint to the WRC on 15 April 2019.

The complainant worked as a senior health and safety consultant in the transmission engineering and maintenance department of the respondent’s company.

The complainant’s case is that the respondent’s attitude and behaviour towards him following his disclosure of a diagnosis of depression and anxiety left him with no choice but to resign.

He had three periods of sick leave due to depression caused by work place stress (between 6 February- 27 April; 10 September 5 November and 30 November -21 January 2019).

Having been on sick leave since the 6 February, the complainant attended an occupational health doctor on 13rd March at the behest of the respondent. This occupational health doctor issued a report dated 13 March 2018 which observed that the complainant

“had developed negative thinking patterns and anxiety symptoms due to experiencing, over some time, less control in relation to his work activity than he would have liked”.

He stated that the complainant clearly enjoys his work activity and his work is rewarding to him. There is no personal stress. The report suggested a "phased return" to work on a protected time basis. In a telephone call prior to his return his manager, Mr.M, Transmission Engineering & Maintenance Manager, asked him what a phased return that might look like. He was upset by this remark as in 10 years with the employer, he had had an exemplary attendance record so had no experience of a phased return.

He returned to work on 27 April. He met his line manager, Mr.M, on 23 May. The meeting lasted 10 minutes and the line manager on thirty-six occasions referred to the inconvenience caused by the complainant’s absence. Mr M knew that the complainant was on medication and attending a counsellor. During this time, he asked his employer if he could use the Employee Assistance Program to access some counselling. The respondent sent an email with a phone number but no other details. The complainant availed of the service.

From that point on every interaction he had was negative and a pattern began to form where the line manager asked him into a meeting with the complainant having no idea of the subject matter. This began to generate severe anxiety and resulted directly in 2 evenings where he considered self-harm. His counsellor provided some support.

During a meeting in June about "doing some things better", Mr M again stated that the complainant’s absence had caused him problems, and that he could not be put in that position again. The complainant objected to the tone and content. The line manager did not acknowledge this, instead stating that he wanted a plan so that "if you are absent again I need to know where things stand". There was no mention of how things could be made better to avoid him becoming ill again. The complainant also pointed out at that meeting that he was actually still ill, still taking anti-depressants, still being treated by his GP and still having counselling sessions. This was ignored. His manager’s unreasonable and oppressive behaviour continued unabated.

He met the line manager on the 28 August. He contested the line manager’s statement that he had been unavailable during working hours in June to assist with a health and safety matter concerning a faulty crane on a ship.

On 28 August 2018 the complainant attended his GP who recommended that he be permitted to work from his home in Belfast as this would aid his recovery as the travel to Dublin was affecting his mental wellbeing. This recommendation was provided to his manager on 3rd September. It was ignored.

On Monday 10th September 2018, the complainant’s GP signed him off again with depression. On Monday 17th September 2018 he attended a different company doctor, based in Dublin. So, whilst off ill he had to travel from Belfast to Dublin for this appointment. This too was unfair and unreasonable. The doctor date concluded that "On mental health assessment, this was consistent with ongoing anxiety with focus on interpersonal friction with one senior, and stress linked to his perceptions of work-related concerns". The respondent took no action, did not discuss this with the complainant and allowed his manager’s unreasonable and oppressive behaviour to continue. His GP placed him on sick leave due to stress on 30th November 2018. The GP advised that in the absence of any timely, realistic and reasonable change of approach by management, his only realistic option was to find another job.

The respondent failed to pay the complainant a bonus for 2018; this was the first time in 10 years that he failed to earn a bonus.

On being cross examined the complainant advised that he chose not to use the company procedures so as to avoid stress. He accepted that he did not give a reason in his letter of resignation as he had had enough.

In response to a question the complainant stated that he expected the respondent to conduct a safety audit to identify what risks might be compromising his health.

In conclusion the complainant submits that he suffered from a serious mental illness and continues to engage in a treatment programme. He received no support from the company. His manager consistently and knowingly bullied him each time he returned to work. Given that his relationship with his immediate line manager was untenable and that no-one had approached him to discuss what could be done to allow him to remain in work productively he had no option, for the good of his health other than to resign. The complainant submitted his resignation on 10th January 2019 after 11 years of exemplary service.

He took up a job as Health, Safety & Environmental Manager in a large manufacturing plant on a salary of £45,000 in February.

The respondent operates the infrastructure which delivers a power supply to consumers.

The respondent did not dismiss the complainant. He resigned on 4/2/2019.  

The complainant failed to use the agreed procedures. Had he done so his complaint would have been fully addressed. None of the peers in whom the complainant confided had the power or function to change matters.

Matters were uneventful until February 2018 when the complainant was placed on certified sick leave which extended up top 26 April. Thereafter he had a further 2 periods of sick leave for which he was paid.

The respondent challenges the basis of the complainant’s complaint of constructive dismissal – the characterisation of the meetings between him and the line manager and the respondent’s alleged indifference and inaction concerning his illness.

The respondent states that with the exception of counselling the medical reports do not suggest any changes in his work.

Mr. M, line manager, gave evidence. He took over the team of which the complainant was a member in August 2017. All was well until February 2018.

Mr M pointed to emails from March 2018 onwards and after the complainant had gone out on sick leave in which he asked the complainant to indicate if he could do anything for him

Mr M welcomed him back at the meeting on 23 May 2018. He does not recollect speaking about the complainant’s absence to the extent referred to by the complainant.

On 5 July a meeting took place between the line manager and the complainant at which performance issues which had surfaced during the complainant’s absence on sick leave – purchase orders, receipt of payments-were brought to the complainant’s attention.

On 24 July a scheduled performance review meeting took place. Mr M raised the complainant’s unavailability to take an important call on 22 June from a survey ship concerning a faulty crane cable and Mr. M was focused on how to prevent a reoccurrence.

On 14 August the line manager met the complainant. He firstly commended him on a recertification audit carried out by Lloyds. He then raised the complainant’s unavailability to take a call on 22 June having made further enquiries since the meeting of the 24 July. In 2010 the complainant agreed with his then line manager that he could work from the respondent’s Belfast office on two days a week. There was no agreement that he could work from home as was now being claimed.

A meeting was held on 6 September between the line manager and the complainant. The line manager advised that he wished to resolve the matter of the complainant going home at lunch time, his availability to customers and claiming expenses for his lunch before he could agree to the complainant working full time from Belfast. He referred his concerns to the HR department. The following Monday the complainant went on sick leave until November 5.

The respondent commissioned an external investigator to examine the complainant’s claim for lunch expenses on a day when he had finished work by lunch time and also concerning the complainant’s unavailability to take a call from a customer engaged in marine research on the respondent’s power cables where there a was a faulty crane on the ship. The respondent Employee Relations Manager who gave evidence stated that he had reassured the complainant and the complainant’s union official on the 9 November that were he to apologise and accept responsibility that that would be the end of the matter. There was absolutely no threat to his job.

The Head of Employee Relations had conversations with the complainant in October, November and December and at no stage did the complainant ever raise the matter of being bullied by his line manager. The first the respondent knew of this matter was when it appeared in the WRC complaint form.

The complainant went on sick leave from 30 November until 21 January 2019.

The complainant’s performance review for 2018 failed to generate a bonus. The complainant indicated on 2 January that he would appeal the review but did not follow up on this. The complainant submitted his resignation on 10 January

The Employee Relations Manager asked to meet him to try and dissuade him and offered him time to consider the matter.

The respondent disputes that the meeting s which took place between the complainant and the lined manager were as described and states that the complainant never raised this matter or in stituted a complaint of bullying against the line manager.

The relevant law governing complaints of constructive dismissal.

The respondent refers to the high bar which employees must surmount in a complaint of constructive dismissal as set out in Katrina Burns V ACM Community Development Society Ltd UD2166/2011. The respondent also refers to the many cases which have established that an employee making a complaint of constructive dismissal must exhaust internal procedures before resigning- a recent case being A care Worker v A Health Service Provider (2017) ADJ-00005216

The respondent refers to the Supreme Court decision of Berber v Dunnes Stores (2009) E.L.R which held that the conduct of the employer in a constructive dismissal complaint 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”

The respondent submits that applying the facts of the complaint to the aforementioned authorities, the complaint must fail.

I am required to determine if the complainant was constructively dismissed.

Constructive dismissal is defined in s 1. of the 1977 Act, as

“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 is 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 burden of proof rests with the complainant in a complaint of constructive dismissal. The tests for constructive dismissal were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

“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 discharged from any further performance”.

The reasonable test was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected t put up with it any longer, the employee is justified in leaving”

I find that the complainant did not argue that a fundamental breach of the contract occurred.

Did the respondent’s behaviour meet the threshold of behaviour so intolerable as to conclude that resignation was the only option?

The proofs which the complainant must advance to prove his case are that the behaviour of the respondent and of which he complains corresponds with the requirements laid out in one or both of the two tests and was behaviour which left him with no option other than resignation

Contrary to the complainant’s assertion, I find that the respondent did apply the advice of the medical practitioners concerning the complainant. I find that none of the medical reports attributed the behaviour of Mr M as the cause of the complainant’s ill health.

The core of the complainant’s case is that his illness should have dissuaded the respondent from referring to his absence so frequently, spared him from any re-examination of arrangements reached with his former line manager – arrangements such as working from his home as opposed to the Belfast office and which did not feature in his contract. His illness, furthermore, should have prompted the respondent who was on notice that his illness was linked to his job to see how the problems associated with the line manager could be addressed. The problem for the complainant is that he did not identify the line manager’s behaviour as something that needed to be addressed. The agreed format for addressing such complaints is found in the respondent’s agreed procedures, as opposed to a random intervention. The complainant chose not to process his concerns through a grievance procedure. In the absence of medical evidence asserting same I do not find that he was unfit to engage in these procedures. Around this time, he was sourcing alternative employment. The complainant who accused the line manager of bullying behaviour did not give the respondent an opportunity to remedy this. The requirement to use the agreed procedures in cases of constructive dismissal has been identified in McCormack V Dunnes Stores, UD,1421/2008, and in Terminal Four Solutions v Rahman, UD 898/2011 and has been followed in many other decisions.

I find that the respondent was aware of the complainant’s concern about the line manager via the medical reports but that he understood that it was about the expenses issue and the inability of a customer to obtain the complainant’s advice on 22June. The matter of his absence being frequently referred to as problematic is contested. The respondent refers to his absence as being problematic in the sense that on June 22, during working hours, when he should have been available, a customer could not get the health and safety advice required in the particular situation and the ship had to return to port. The second matter of his absence refers to the need for a plan or information to be at hand, so his absence is less problematic than experienced by the respondent on those occasions.

It is accepted that the Employee Relations Manager upon receipt of the complainant’s letter of resignation offered him a cooling off period and invited him to meet him. The complainant declined to avail of this.

I can accept that there may have been a lack of sensitivity displayed on the part of the line manager, to an employee who had not experienced any difficulties previously, but these incidences do not constitute a breach of a contractual term. Nor can I find that the incidents complained of amount to behaviour so intolerable as to justify the complainant’s resignation without attempting to use the procedures to rectify same. He declined to avail of this.

I accept the respondent’s description that the complainant “jumped the gun”

The evidence does not support the complainant’s contention that he met one or both tests necessary to sustain a complaint of constructive dismissal

I do not find that the complainant was constructively dismissed.

I do not find this complaint to be well founded.

Constructive dismissal; failure to use procedures