Complainant

Respondent

Anonymised Parties

Employee

Retail Outlet

Representatives

Susan Ui Uiginn Solicitor

HR

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00033750-001

13/01/2020

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

CA-00033750-002

13/01/2020

The Complainant submitted two complaints, the material facts of which were common to both.

Under CA-00033750-001, the Complainant contends that he had been subjected to bullying and harassment from another employee and that he was so shaken by a particular incident he could not fully return to his workplace.

Under CA-00033750-002, the Complainant contends that such was the situation as a result of his treatment, he had to resign his employment.

The Complainant was employed as a Department Head with the Respondent from 4th June 2014 to 29th July 2019, when he resigned his employment.   There was one staff member Mr C who was particularly aggressive and it was well known within management that Mr C had anger management issues. This individual was known to shout and swear at employees, and he was transferred to the Stockroom to avoid altercations with other employees. The Complainant was asked to show 3 employees how to use the baler/compactor. He was subjected to verbal abuse on 27th March 2019, when Mr C shouted at the Complainant, followed him out to the car park and continued his verbal attack. The Complainant was extremely shaken and went on sick leave immediately after the incident. He subsequently communicated with Manager Ms D and HRM Ms J that he would come back to the workplace when assured that it would be a safe place to work.   The Complainant was told on 4th April 2019 that he would not have to work with Mr C, so he came back to work for a short time after. The Complainant was out sick shortly thereafter and it is contended that this was for a back problem, exacerbated by the stress at work.

The Respondent stated that once the altercation of 27th March 2019 came to their attention, they launched an investigation. Mr C was put on suspension, and the Complainant was told this, and asked for his statement to be given so that the investigation could progress.   However, despite several requests from H.R. the Complainant failed to produce same. The colleague Mr C was suspended on 9th April 2019 and the process of investigation was concluded on 18th April 2019.   On 4th April 2019, the H.R. manager told the Complainant he would not have to work with Mr C.          On 6th and 7th April 2019 the Complainant went back to work for a few days, and then went on sick leave, telling management that his back was “too bad” to work. The medical certificates which the Complainant submitted stated back problems.   On 11th July 2019, the Complainant texted the Manager to say he had secured a new job.  The Respondent is at a loss to understand the data privacy issues. The Complainant did request a document he left behind by mistake and this was sent to him via the source he requested. Otherwise, all pay information is sent electronically to employees and password protected. The Respondent denies that the Complainant was constructively dismissed.

CA-00033750-001, the Complainant contends that he had been subjected to bullying and harassment from another employee and that he was so shaken by a particular incident he could not fully return to his workplace. Having investigated the matter, I find that the Employer in this case took immediate action when notified of the incident of 27th March 2019. The Employer has comprehensive policies on bullying and harassment. The Employer tried to get the Complainant’s side of the story and by his inaction, the Complainant did not effectively cooperate with the Employer’s investigation.   I accept the Complainant’s evidence that employee Mr C was an aggressive person and that he shouted at and verbally abused the Complainant. However, as the matter was dealt with by the Employer in so far as they could, I make no recommendation for further action in this case.

CA-00033750-002, the Complainant contends that such was the situation as a result of his treatment, he had to resign his employment.     The definition of constructive dismissal as contained in the Acts is 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”

It is well established that in claims of constructive dismissal, the onus of proof lies with the employee to demonstrate that he/she would be entitled to terminate the contract of employment in circumstances in which, because of the conduct of the employer, it would have been reasonable for the employee to terminate the contract of employment without giving prior notice. Unlike other dismissals, in the circumstances where an employee claims that they have been constructively dismissed the onus is on them to prove that their resignation was justified. In effect, they are required to prove that they have exhausted all other avenues of resolution before they have resigned their position.   Case law has settled that there are two important tests which need to be met in all claims of constructive dismissal (1) the contract test and (2) the reasonableness test. In the contract test, the employee is entitled to terminate the contract as the employer has breached a fundamental condition that goes to the root of the contract. The reasonableness test evaluates whether the actions of the employer were so unreasonable that the employee was left with no option but to resign. The contract test was described in Western Excavating (ECC) Ltd v Sharp (1978) by Lord Denning MR:

“If the 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 discharged from any future performance”.

The contract test can be applied to situations such as failure to provide pay and benefits as agreed, downgrading or demoting without due process, breach of safety, health and welfare at work obligations, failure to have a code or procedure for bullying and harassment and failure to act upon same.   In this instant case, I find that the Respondent has a comprehensive policy on bullying and harassment and grievance procedures and the Respondent endeavoured to get cooperation from the Complainant in relation to the investigation of the Complainant’s colleague, Mr C.                               The reasonableness test is where the employer has acted in such a way that the employee can no longer be expected to put up with it. The Labour Court in An Employer v A Worker ED/02/57 Determination No. EED0410 found in relation to the reasonableness test:

“This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot be fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, nonetheless be regarded as so unreasonable as to justify the employee resigning there and then”.                                                               In this instant case, I note the Complainant’s lack of cooperation in submitting a statement to the Respondent, I note that he clearly stated to management that he had back problems and he resigned his position to take up another job. I find that the Complainant has not met the high bar of the burden of proof that the Respondent has acted so unreasonably that he could be justified resigning there and then. His complaint of constructive dismissal is not well founded.

Bullying.   Constructive dismissal