Complainant

Respondent

Anonymised Parties

Mobile mechanic

Vehicle Hire company

Representatives

Self-represented

Mason Hayes & Curran. Ms Rosemary Mallon, B.L.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030066-001

02/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030066-002

02/08/2019

The complainant has brought a complaint of constructive dismissal and a complaint of a breach of section 3 of the Terms of Employment Act, 1994 -2019 against the respondent.

The complainant was employed as a mobile technician in the respondent’s vehicle hire company from 27 May 2014 until his resignation on 5 April 2019.

He works 40 hours a week. His monthly gross pay is €2833.

He submitted his complaint to the WRC on 6 August 2019.

CA-00030066-001.Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

At the outset the respondent requested that appendices 1, 2 and 4 in the complainant’s submission should be removed as authors of said statements were not present to attest to these documents, or alternatively, the case should be adjourned until they could attend and give evidence. The complainant wanted the case heard on the 30 October 2019, did not want an adjournment and agreed to the exclusion of the documents and to proceed with the hearing.

The complainant asked many times for a copy of his contract and terms and conditions of employment as he had needed it to secure a mortgage. He raised the matter again with the Head of HR in February 2019. He was finally provided with a contract on 2 April, 3 days before he resigned.

CA-00030066-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977

This is a complainant of constructive dismissal occasioned by the complainant’s fear of the respondent’s inability to protect him from any retaliatory behaviour for having made a complaint about his Manager, Manager A. The complainant’s complaint ultimately led to Manager’s A dismissal. The complainant feared retaliation from Manager A’s friends

The complainant’s wife read the complainant’s submission as the complainant has dyslexia. No objection was raised.

On 28 February 2018, a manager, Manager A set up a WhatsApp group, ostensibly to keep in touch with staff about the adverse weather and added the complainant’s number to this group. The WhatsApp thread soon revealed its other purpose with Manager A circulating pornographic material on this chain and using a work phone. Over the next 12 months five members of the management and supervisory team, Manager A (the Workshop Manager), the Operations Director, the Deputy Manager of the Workshop, the Foreman and Supervisor – all persons engaged in management / supervisory roles participated in this WhatsApp group both during and after working hours. This site contained over 2500 pieces of media and thousands of messages. The complainant submitted examples of these messages. The complainant submitted that pornographic and degrading material could be circulated with impunity causing distress to the complainant. Manager A was the prime mover in the circulation of this material. The complainant felt he had no option other than resignation because of the respondent’s failure to adequately deal with the situation.

The complainant officially brought the offensive messages posted by Manager A to the attention of the Head of HR on 13 March 2019. He delayed formally notifying management as he believed that HR and some members of management knew about the existence and content of the messages. He formed this belief as a couple of months prior to March 2019, the complainant discussed the inappropriate content of the messages with a HR representative. She asked if there was anything negative about her on the messages. The WhatsApp group was referred to in most morning management meetings, attended by all supervisors and operations management. Manager A asked that photos be sent to the WhatsApp group each evening.

The complainant felt unable to detach from the group as a lot of work-related content was posted on it as well and a number of fellow employees who had attempted to leave were added back to the group. The complainant presented evidence of this. The complainant had no access to the internet driveway to access policies. The complainant has dyslexia and had told his supervisor of this many times.

Manager A, the prime mover in sending all the messages became the complainant’s manager on 11 February 2OI9.His line manager for day to day reporting, Supervisor C was another willing participant in the WhatsApp group. He was unhappy as he was just about able to able to cope with the messaging without having the two individuals manage him.

He felt targeted by Manager A. On 16 February Manager A implied to a colleague that the complainant had been stealing vehicle parts. Manager A had also told the complainant that he could not use company tools or attend in a company van to repair a friend’s car after work hours. In the past, employees were permitted to conduct their own business out of the respondent’s vans. Nobody had advised the complainant that the respondent had changed its rules and now prohibited staff completing personal business from a company van After hours. This change was ignored in one instance. The complainant gave an example of his Supervisor instructing a colleague to repair a van belonging to a friend of that Supervisor. These events constituted the last straw for the complainant. He attended his GP who certified him as unfit to work owing to workplace stress.

The complainant made a formal complaint of bullying against Manager A to HR on 18 February 2019. The investigation into these complaints concluded that Manager A did not name him. The car which his colleague has been repairing was the car of one of the respondent’s customers. The HR Manager concluded that this did not amount to bullying. The complainant replied to this report on in a letter of March 12, expressing disappointment with the investigation’s outcome. He made a subsequent complaint in his letter of 14 March about the circulation of pornographic material circulated by Manager A in the WhatsApp messaging group and included examples of the pornographic material circulated by Manager A.

Given that the Supervisor told a colleague of the complainant that the complainant was responsible for Manager A’s dismissal, the complainant felt unable to return to a scenario where he would be seen as responsible for the dismissal of Manager A and where Manager A was close friends with the Manager replacing him. The complainant put these concerns to the Head of HR at a meeting on 4 April. He advised of the involvement of 3 other personnel in the WhatsApp group at that meeting. She was unable to offer him a satisfactory solution or reassurances. Contrary to what the respondent is claiming, the complainant never made any reference to a constructive dismissal complaint at this meeting.

Upon questioning by the respondent’s barrister, the complainant confirmed that he had not disclosed the identities of the other 3 supervisors / managers on the WhatsApp group. He stated that he had not been asked to submit examples of any messages other than Manager A’ s messages. He maintains that it was the responsibility of the HR Manager to seek out he messages and examine them. The Deputy Manager and the Foreman of the workshop were part of the WhatsApp group,

He wrote to the HR manager on 5 April acknowledging that Manager A was no longer employed but that a colleague had told him that Supervisor C told the colleague that Manager A was let go because of the complainant’s complaint.

The complainant did not know where to turn. He has no recollection of receiving the dignity at work policy from the respondent. The complainant has dyslexia and had told his management (but not HR) many times of this.

The complainant submitted copies of messages from all 4 involved in the circulation of these messages at the meeting on the 4 April.

With regard to the respondent’s statement that the complainant could function predominantly as a mobile technician and therefore be relieved of working with people about whom he was fearful and could report to the new Workshop Technical Manager, the complainant stated that he was not mobile for 90% of the time. He also reminded the respondent that personnel, contributors to the WhatsApp group and friends of the Manager A, were still with the company.

He stated that he did not believe these special measures would do other that single him out to fellow employees.

He did not feel he could return to work and be assured of a safe environment.

The complainant on being asked by the respondent’s barrister about the new company which the complainant had set up, confirmed that he had been employed in the new company since August 2019 on a part -time basis, earning €160 a week. This new company, operating a similar service to that of the respondent, had been set up by the complainant’s wife and father-in-law on 4 March 2019. It commenced operations in May 2019.

The complainant is seeking compensation.

The complainant applied for 4-5 jobs between May and July 2019. He confirmed that he confined his job search to the county in which he lives.

CA-00030066-001.Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The respondent stated that the first time the complainant ever sought a contract was in February 2019, two months before his resignation. The respondent did not have a HR presence in Ireland when the complainant commenced employment in 2014 and, inadvertently, a contract of employment was not issued to him at that time.

However, as soon as the complainant brought this to the respondent’s attention in February 2019, the Head of HR assured the complainant that she would follow up on putting a suitable contract in place. A comprehensive contract of employment was then provided to the complainant on 2 April 2019 which reflected his latest terms and conditions of employment. The complainant never responded to the respondent’s offer of a contract on the 2 April 2019.

The Respondent has rectified its omission in this regard.

The complainant’s claim should fail.

CA-00030066-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The respondent disputes that a dismissal occurred. The complainant resigned on the 5 April. The complainant was a valued member of the respondent’s business and the respondent never had any issues in relation to his performance. The complainant worked in the workshop as a mobile technician repairing customers’ vehicles.

On 8 February 2019, changed its management structure. The mobile technicians were notified that they would be reporting to Manager A with effect from 11 February 2019, but that C, the Supervisor, would be the point of contact on a day to day basis.

The complainant states his resignation was influenced by the fact that he was bullied by Manager A. The complainant made a complaint to the Head of HR in a telephone call on February 15. She asked him to formalise his complaint in writing. He made a written complaint of bullying against the Workshop Manager, Manager A on 18 February. At this juncture, the complainant had been reporting to Manager A for 5 working days, had confirmed that he had always been happy in his employment and that his difficulties with Manager A had only started on 11 February 2019, some 7 days before he lodged his complaint.

The bullying complaint primarily centred on two allegations:

Manager A had implied to the complainant’s co-worker that the complainant had been stealing stock and parts from the respondent’s workshop and

had chided the complainant for acting contrary to company rules when he used the company van to fix his friend’s car, while at the same time another Mobile Technician had, that week, been instructed by the Workshop Supervisor and Compliance Administrator to fix a car belonging to one of the latter’s friends.

The complainant informed the Head of HR in this written complaint that he would be absent from work on work related stress for two weeks from that date. The complainant remained on sick leave until his resignation on 5 April 2019. He was paid full sick pay during this period.

The Head of HR responded to the complainant within three hours of receipt of his written complaint, confirming that his complaint would be investigated, and attaching a copy of the respondent’s Grievance Procedure and Dignity at Work Policy.

The Head of HR investigated the complainant’s complaint. She emailed the outcome of the investigation to the complainant on 5 March 2019. She concluded in this report that Manager A had not specifically named the complainant in relation to his concern regarding missing parts in the Workshop and that all members of the workshop team had, at various stages, been spoken to in relation to the unaccounted stock.

Regarding the complainant’s complaint that he was treated differently in relation to the use of company vans, there was a new procedure in place prohibiting the use of company vehicles and this was clarified to all mobile technicians in a letter from Manager A on 14 February. The work ordered by the Workshop Supervisor related to a supplier’s van. The Head of HR gave evidence that the respondent did not issue any warning to the complainant about the use of company vans – It was advice. The Head of HR advised the complainant that his allegations did not amount to bullying within the meaning of the Safety, Health and Welfare at Work Act 2005 as the allegations were isolated incidents. In her email of 5 March 2019, the Head of HR also made it clear that she was available to the complainant if he had any further concerns.

On 12 March 2019, the complainant submitted a further complaint alleging that Manager A had, using his work phone, circulated material of a racial, sexual and pornographic nature to the complainant and other employees on a WhatsApp group created by Manager A. The Head of HR responded to this new complaint within a matter of hours, confirming that this complaint would be investigated. She met with the complainant on 14 March 2019 to obtain a statement from him in relation to the new allegations. The complainant was accompanied at this meeting by his wife. The complainant submitted samples of Manager A’s WhatsApp messages. The Head of HR apologised to the complainant that he had been subjected to such material and expressed regret that no one had reported the matter at an earlier stage. The company would now take action.

The respondent then proceeded to investigate the new complaint. Following an investigation and disciplinary process, Manager A was ultimately dismissed for gross misconduct on 3 April 2019 as a result of his behaviour.

The complainant only referred to the messages circulated by Manager A. Up until the 4 April, the day before he resigned, the complainant never mentioned the participation of the Operations Director, the Deputy Manager of the Workshop, the Foreman or the Supervisor in the group. After the complainant told her of the WhatsApp messages, on the 4 April, she gave the names of the 26 members of the WhatsApp group to the new Workshop Technical Manager. He checked the phones. There was no inappropriate content on the phone of the Deputy Manager of the Workshop. By this stage, Manager A had wiped his phone.

The news Workshop Technical Manager met all 26 members of the workshop group and asked them if they wished to make any comments or divulge any information on the WhatsApp group. Supervisor C about whom the complainant was fearful resigned rather than allow the disciplinary process, already activated against him, take its course.

The Head of HR gave evidence that at a meeting with the complainant on the 4 April 2019 she had confirmed to the complainant that Manager A had been dismissed. At this meeting the Claimant indicated that he wished to resign because of the fear of victimisation by his other colleagues as a result of Manager A’s dismissal. He was offered absolute assurances that no retaliatory behaviour would be tolerated. In addition, the Head of HR was hopeful that none would occur and stated that some employees were very happy about the disclosure of the messages and the fact that it had been addressed. He was informed that two other members of the management team on the WhatsApp group had left. The complainant was told that the Operations Director and the current MD had left. There was a new management in place. The complainant could report to the UK Workshop Technical Manager who would run the workshop for the foreseeable future. He was advised that the new MD would support him. The new Workshop Technical Manager and acting MD had no previous affiliations with any of the people involved in the WhatsApp group. The head of HR asked the complainant to meet with the Supervisor and new Workshop Technical Manager on the 18 April to organise how things could be managed.

The respondent advised that Supervisor C had resigned from the respondent’s employment as he had been subject to a disciplinary process as a result of the WhatsApp messaging. To the complainant’s statement that he was fearful of going back to work with Supervisor C and the Deputy Workshop Manager, the respondent stated that he had never stated that these two employees has been involved in the WhatsApp group. He stated that it was their friendship with Manager A that dissuaded him from returning to work. She also made it clear that if the complainant experienced any negative feedback from his colleagues as a result of Manager A’s dismissal (which the complainant had expressed concerns over), that such behaviour would be appropriately dealt with. She also assured the complainant that, contrary to his stated concerns, the measures to be put in place to protect him should not be seen as “special treatment” and instead were interim solutions to give him comfort and support on his return. She again asked the Claimant to reconsider his resignation. The Head of HR in a follow up email on 5 April 2019 set out the measures intended to give him confidence about his return to work. She explained that:

The Workshop Technical Manager, UK and a stranger to the situation would take over management of the workshop and would provide support to the complainant. A new workshop manager would be recruited in the coming weeks;

The Respondent could arrange for 90- 95% of his role to be carried out offsite so that he wouldn’t have to attend the workshop and that the Respondent could arrange for him to attend only when the newly appointed Workshop Technical Manager was on site.

She suggested that the complainant meet with the new Workshop Manager on the following Monday.

The Head of HR he stated that when presented with the options on the 4 April, the complainant stated that he was going to” take his chances at the WRC”.

The Head of HR contested the complainant’s statement that he had been hampered by the absence of information on policies which he could have used to address the WhatsApp messages. Three times in in the 18-month period prior to the complainant’s resignation, he attended presentations on the respondent’s Dignity at Work Policy on 10 October 2017, 13 December 2017. The complainant also attended also attended another session on the Dignity at Work Policy on 6 December 2018 at which copies of the policy were circulated and made available to employees. She stated that she had spoken to workshop staff concerning a complaint from another member of staff on a previous occasion. The complainant was present at the meeting. She explained that the respondent had had to pay an award of €40,000 to a member of staff who had made a complaint to the WRC. The complainant at that meeting said in a jocose manner,” If I had known of this I could have got money before”. Moreover, all the respondent’s policies are on its intranet “driveway” for all staff to access and the complainant was well aware of this. Every employee has an email address, is given a password which when used triggers the opening of the driveway and enables access to all relevant documents. The complainant never informed HR of any difficulties with the password or of accessing email or documents.

The Head of HR stated that contrary to what the complainant stated, Ms JB, a HR executive with the respondent, advised that the complainant had never informed her of the messages.

The respondent states that it was very unreasonable of the complainant to resign without giving the new management team a chance to demonstrate that they would not countenance any retaliatory action against him for having made a complaint about Manager A and the WhatsApp messages, and knowing that Manager A was no longer around. Manager A was terminated from his employment on 3 April 2019 prior to the Claimant’s resignation and the complainant knew this.

Legal Arguments.

In a claim of constructive dismissal, the burden of proof is on the complainant to establish that the actions of the respondent were so unreasonable that he had no option but to resign and/or that a fundamental term in the contract of employment was breached.

In A General Operative v a Religious Society ADJ–00002814 the Adjudication Officer set out the test of constructive dismissal as:

“In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour ofthe employer is taken to mean something that is so intolerable as to justify the Claimant’s resignation, and something that represents a repudiation of the Contract of Employment. … In effect the question is whether it was reasonable for the employee to terminate the Contract on the basis of the employer’s behaviour”.

In that case the Adjudication Officer referred to the Supreme Court decision in Berber v Dunnes Stores Limited(2010) IESC 102. The Supreme Court held:

“That being the history of interaction between the Appellant and the Respondent and

looking at each event individually and at the events cumulatively, I am satisfied that the

conduct of the Appellant judged objectively was not such as to amount to a repudiation

of the Contract of Employment. The conduct judged objectively did not evidence an

intention not to be bound by the Contract of Employment”.

The respondent submits that they did not breach a fundamental term of thecomplainant’s contract of employment. Therefore, the complainant must fail the contract test. In relation to the reasonableness test it is submitted that there was nothingunreasonable in the actions of the respondent. The respondent properly investigatedboth of the complainant’s complaints in a timely fashion. The second complaint resulted inthe perpetrator being dismissed. The respondent was even willing to change thecomplainant ‘s working arrangements to make him feel more comfortable and so that hewouldn’t have to spend time with other workshop employees. At all stages the complainant was treated in a fair, appropriate and reasonable fashion.

The respondent did everything in its power to encourage the complainant to return to work and to ensure that he would be supported in his return. He was advised that the new MD would support him, and he could report to him.

The respondent submits that neither of the above-mentioned tests is satisfied in the within proceedings.

Loss.

The complainant has failed to mitigate his loss in the sense that he only applied for 4-5 jobs and confined his search to his own county.

CA-00030066-001.Complaint under section 7 of the Terms of Employment (Information) Act, 1994.

Section 3 of the Act of 1994 as amended lays out the particulars that an employer must provide to an employee within two months of the commencement of his employment. The respondent clearly did not do that.

Concerning the time limits for submission of a complaint, Section 41(6) of the Workplace Relations Act,2015 states

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates” ‘

The matter of the time limits within which a complaint under the Act of 1994 must be lodged was addressed in ADJ 0009820. The adjudicator stated

“Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship. Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress. The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention thatendures so long after the initial two-month period the employee remains an employee not in possession of a statement…………If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment”.

However, the complainant was provided with terms and conditions of employment on the 2 April 2019 and while still in the employment of the employer. It is not a ” subsisting contravention”.

I find that by virtue of section 41.6 of the Act of 2015, I do not have jurisdiction to hear this complaint.

CA-00030066-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I am obliged to establish if section 1 (b) of the Act of 1977 operates to validate this complaint of constructive dismissal . Section 1 (b) states

“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.”

In light of the statutory definition contained in section 1 of the Act of 1977 as amended, the established principles adopted by the relevant fora and the courts, the onus lies with the complainant to demonstrate that his resignation was justified.

In justifying his decision to terminate his employment the complainant will have to demonstrate that the circumstances of his dismissal met the tests as set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) 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”.

and the reasonable test which was expressed as

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

These tests were followed in a line of Irish authorities including Paris Bakery and Pastry Ltd v Mrzljak DWT 68/2014.

The circumstances which compelled the complainant to resign were not so much the wholly objectionable, degrading and pornographic messages sent to him, nor the fact that there was a seeming tolerance for this material in his workshop, rather it was the fallout from his complaint about the WhatsApp messaging. Specifically, he believed that he would face retaliatory behaviour form colleagues of Manager A for his complaint and the consequential dismissal of manager A; the respondent would be unable to protect him against the retaliation. The measures proposed to protect him in the workplace would identify him and were of no assistance to the complainant. He also referred to the targeting of him by Manager A as being the last straw. The targeting occurred in February 2019 and before the complainant made the complaint about the WhatsApp messaging on March 2019.

I cannot conclude that it was unreasonable for the complainant to have formed the view that the Workshop and Operational management tier were undisturbed by the WhatsApp thread and failed to act. But the actors in this thread or who may have tolerated it had resigned or been dismissed and so would be unable to affect the work environment. They no longer occupied the same positions of influence; there was a new Worksop Manager. The complainant’s fears about the former Deputy Workshop Manager stepping up into the Manager’s place were unfounded and he was advised of this on the 4 April. The Supervisor resigned. So, the cohort of 4 individuals who might exercise retaliation against him in the workshop was down by two, not to mention the chastening effect that the dismissal of Manager A and the subsequent resignation of Supervisor C might have on any colleague minded to retaliate. The evidence is that some staff were glad of his disclosure.

Was his disbelief in their capacity to protect him from retaliation- and this is the exact reason for his resignation- well founded? The answer to that would be revealed after his return to work.

The employee is required to act reasonably and fairly. The complainant only brought the complicity of his three superiors in the workshop to the attention of the respondent a day before his resignation. Was it not unreasonable to fear that a respondent who had immediately acted on the circulation of pornographic material, dismissed the principal culprit, placed another in the disciplinary process on being notified of his complicity and brought in a new management team would be slow to challenge any retaliatory actions against the complainant?

I find that the complainant acted prematurely. He should have given the new regime a chance to prove its bone fides and to demonstrate its resolve to challenge any retaliation were it to emerge. Were they to fail on this point, resignation at that stage would have been a different matter.

Based on the evidence and for the reasons set out above I find that the respondent’s behaviour was not so unreasonable as to justify the complainant’s decision to terminate his employment.

I find that the complainant has failed to meet the tests set out in Western Excavating (ECC) v Sharp (1978).

I do not find the complaint of constructive dismissal taken under the Unfair Dismissals Act 1997-2015 to be well founded.

CA-00030066-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I find that I do not have jurisdiction to hear this complaint.

CA-00030066-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I do not find that the complainant was unfairly dismissed.

Premature resignation.