FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : WINTHROP ENGINEERING AND CONTRACTING LTD (REPRESENTED EDWARD WALSH B.L., INSTRUCTED BY HBMO SOLICITORS) - AND - MR KIERAN DONAGHER (REPRESENTED BY HRS CONSULTANTS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00012876 CA-00016978-001. This is an appeal by Mr Kieran Donagher (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00012876, dated 2 September 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer decided that the Complainant’s complaint of constructive unfair dismissal, referred to the Workplace Relations Commission on 23 January 2018, was not well-founded. The Complainant’s Notice of Appeal was received by the Court on 9 October 2019. The Court heard the appeal in Dublin on 15 December 2020 during which it received sworn evidence from the Complainant and from Mr Ciaran Morgan, HR Director with Winthrop Engineering and Contracting Limited (‘the Respondent’). The Factual Matrix The Complainant was employed by the Respondent as an electrical supervisor. He commenced this employment on 1 November 2016 and resigned on 4 January 2018 citing his dissatisfaction with the manner in which the Respondent had dealt with allegations of bullying and harassment raised by the Complainant (originally in July 2017 and again in November 2017) against his line manager, Mr A. For the duration of his employment with the Respondent, the Complainant was assigned to a large infrastructural project in Amsterdam which consisted of the conversion of a number of warehouses into data centres including all construction works and electrical and mechanical fit-out. The project comprised a number of separate but linked buildings with a number of different handover dates for different phases/stages in each building. The Complainant’s annual salary was €65,000.00. While working abroad on the Respondent’s behalf, he received a weekly subsistence payment of €160.00 and accommodation was provided for him by the Respondent. His employer also paid for return flights to Dublin once a fortnight. It appears the first number of months of the Complainant’s employment in Amsterdam were uneventful. He believed the project was progressing well overall and that the Respondent was satisfied with his work. In evidence, he told the Court that Mr A had instructed him to purchase a video camera in order to record the excellent work that was being done on the project. The resulting video was to be shown to the Respondent’s Managing Director, Ms Ann Dooley, and the corporate client on whose behalf the project was being undertaken. However, according to the Complainant, Mr A’s attitude towards him began to change from early July 2017 onwards. He told the Court about an incident that occurred on one occasion when he approached Mr A, in the usual way, to ask him to sign off on his impending flight back to Dublin. The Complainant says he had witnessed Mr A doing this without issue for other colleagues but when he approached Mr A he says Mr A fobbed him off and said – in sight of other colleagues in an open plan office – he would do it later. The Complainant told the Court that this experience caused him to become stressed and he worried whether, in fact, he would be able to return home that weekend as planned. In addition, the Complainant says that the timing of his return flight to Dublin from Amsterdam every second Thursday was also changed to a later time. He believes this change applied only to him initially although he accepts it was subsequently applied to other colleagues. On Friday 28 July 2017, the Complainant sent an email to Ms Anne Dooley and Mr Ciaran Morgan in which he raised a complaint in relation to Mr A’s behaviour towards him. He gave a number of examples of when he believed that Mr A had been aggressive in his dealings with him. He also stated that he believed he had been treated differently to other colleagues in relation to the timing of his outbound and return flights. He described the manner in which Mr A had spoken to him in front of colleagues as “unacceptable, demeaning and uncalled for”. He also said that he had concluded that Mr A was “trying to get rid of [him]”. Later that day, Ms Dooley replied to the Complainant’s email to assure him that she would ask the HR Director to follow up on his complaint the following Monday and that he would conduct a thorough investigation into it. She also addressed the issue of the changes being implemented in the company at that time to the procedure for booking and approving flights for staff. On 31 July 2017, Mr Morgan emailed the Complainant asking him to telephone him whenever he was free to do so in order to discuss the issues raised in his email of 28 July 2017. Mr Morgan followed up with a further email to the Complainant on 1 August 2017 in which also addressed the changes that were being implemented, at that time, to flight booking arrangements. He offered the Complainant the option of flying out of Belfast rather than Dublin. Mr Morgan advised that he hadn’t yet had the opportunity to inform Mr A of the allegations against him but would do so shortly and revert with an update. Mr Morgan also spoke with the complainant on the telephone that day. Later that afternoon, the Complainant again emailed Mr Morgan to complain that Mr A had spoken to him in a condescending manner about his flight times. He again complained that he was experiencing “stress and grief” as a consequence of Mr A’s “bullying tactics”. Mr Morgan engaged with Mr A in relation to the issues raised by the Complainant. Mr A expressed surprise and told Mr Morgan that he thought he had had a good relationship with the Complainant and had had no intention of treating him differently or discriminating against him. Mr Morgan communicated this to the Complainant in an email on 3 August 2017 in which he also confirmed that the new flight arrangements had been implemented for all staff. He expressed the hope that “at this point that everyone can move forward in a positive manner”. Finally, he invited the Complainant to telephone him the following week if he wished to discuss the matter further. The Complainant did not avail himself of the opportunity to do so. The Complainant was absent from work on certified sick leave between 13 September and 9 October 2017. On Saturday, 4 November 2017, the Complainant emailed Mr Barry English, CEO of the Respondent Company, and copied Mr Morgan on the email in which he outlined further allegations against Mr A. He also stated that his first complaint (in July 2017) against Mr A had not been taken seriously by Human Resources. The Complainant expressed the view that the behaviour he was now complaining of (“retaliation, bullying, harassment and insulting me”) constituted penalisation for his earlier complaint. He cited an incident that had occurred on the previous Tuesday morning when he had arrived on site. He said Mr A had spoken to him in a derogatory manner and instructed him to touch up the paintwork on a number of panels. He did so although he believed this was work for a painter and not an electrical supervisor. The Complainant also referred to a conversation he had had with Mr A on 1 November 2017 during which Mr A allegedly told him he had not been missed during his period of sick leave, that he was the worst foreman he had ever had and that he (the Complainant) had no right to be in the office as he should be spending his time on site. In his letter of complaint to Mr English, the Complainant surmised that he was being excluded from the office environment, isolated and subject to Mr A’s “demeaning manner” in front of his colleagues. He went on to say that his mental health was suffering “due to this issue not being dealt with”. The Complainant went on sick leave again in or around this time. Mr English passed the Complainant’s letter of complaint to Mr Ciaran Morgan who commenced a formal investigation pursuant to the Respondent’s Bullying and Harassment Policy. Mr Morgan interviewed the Complainant on 13 November 2017 and requested him to disclose all matters and witnesses which he wanted included in the investigation that day before any witness statement was taken on behalf of either side. The Complainant advised Mr Morgan that there was only one witness he wanted involved - Mr Alan Flanagan. Mr Morgan also interviewed Mr A on 13 November 2017 and requested him to identify, before the investigation commenced, any witnesses he wished to be interviewed as part of the process.Mr Morgan interviewed Mr Alan Flanagan on 15 November 2017 and then circulated Mr Flanagan’s statement to all parties on 16 November 2017. Following receipt of the statement, the Complainant requested Mr Morgan to interview other people he had not previously named. Mr Morgan declined to do so. On 14 November 2017, Mr Morgan contacted the Complainant by telephone to arrange a meeting with both the Complainant and Mr A on 20 November 2017 at the Respondent’s offices in Ballymount, Dublin. He confirmed the arrangements for the meeting in a telephone conversation with the Complainant on 16 November 2017. At approximately 2.35 pm on the following day, Friday 17 November 2017, the Complainant emailed Mr Morgan a list of fifteen questions he had in relation to the proposed meeting on the following Monday. Mr Morgan did not reply to this email as he was finishing work for the weekend and took the view that he could deal with the Complainant’s questions at the meeting on the following Monday morning. The Complainant arrived for the meeting as arranged on 20 November 2017. The Complainant and Mr A were in different rooms. The Complainant requested Mr Morgan’s permission to record the meeting on his mobile phone. Mr Morgan agreed to this. Mr Morgan spoke to both parties separately but matters did not progress to a point where Mr Morgan felt it useful to bring them both together in one room. The Complainant advised Mr Morgan that he wasn’t feeling well enough to return to Amsterdam that day as he was taking prescribed medication. Mr A prepared a written statement setting out his response to a number of issues raised by the Complainant. Mr Morgan furnished this to the Complainant by email on 21 November 2017. Mr Morgan concluded his written report on 24 November 2017. He made the following findings:
Both Mr A and the Complainant had very different views of what occurred on each of the occasions the Complainant alleged he had been bullied by Mr A; Mr A had acted throughout in a professional manner; There was a particular incident (on 1 November 2017) that Mr A accepted he should have handled in a more gentle manner; The issue in relation to the Complainant’s presence in the office resulted from an increased demand for office space that required Mr A to introduce a “hot desk” system – it was a by-product of a busy working environment and was not personal to the Complainant; There was no evidence of “repeated inappropriate behaviour” on Mr A’s part towards the Complainant; Any support that the Complainant might require should be afforded to him.; A course of one-to-one coaching on communications skills was recommended for Mr A.
The Complainant did not appeal Mr Morgan’s findings. He was, however, on 14 December 2017, offered the opportunity to engage in a mediation process with an independent facilitator. He declined the offer to do so. The Complainant told the Court that he had availed himself of the services of HRS Consultants (who also represented him at the WRC and before this Court) shortly after the meeting on 20 November 2017. There was a lengthy exchange of correspondence between HRS Consultants and the Respondent’s Solicitors commencing with a letter dated 4 December 2017 from HRS which outlined the Complainant’s dissatisfaction with the manner in which his complaints had been investigated. Loss of Earnings As stated previously, the Complainant resigned his employment by letter dated 4 January 2018 and addressed to Mr Ciaran Morgan. He stated that he had been disappointed with the “level of the investigation” conducted into his allegations of bullying and harassment against Mr A and the outcome of that investigation. He went on to say that all trust between him and the Respondent had broken down and “for the sake of [his] health” he could not return to the workplace. At the hearing of the within appeal, the Complainant’s representative submitted a statement of loss of earnings. The total loss of earnings he claims is €74,364.96. He gives details of a number of temporary periods of employment commencing on 20 March 2018, interspersed with periods on Job Seekers Benefit. The Complainant informed the Court verbally that he was in receipt of illness benefit for a number of weeks in or around the date of his resignation but was unsure as to what form of social welfare payment he received in the period between 4 January 2018 and 20 March 2018 when he commenced his first period of temporary employment following his resignation. The Complainant was invited by the Court to make enquires of the Department of Social Protection in this regard and to advise the Court subsequently. T he Complainant subsequently furnished the Court with a statement from the Department showing the total amount of the social welfare payments he received in the period 31 October 2017 to 1 March 2018. However, it is not possible to determine from the statement furnished whether or not the Complainant was in receipt of illness benefit for that entire period. However, having regard to the Court’s determination of the claim under the Act (see below), it is not necessary for the Court to pursue this matter any further. Legal Submissions The Complainant’s Representative identified the following judgments and determinations which he submits support his client’s constructive dismissal case.Margaret Kelly v Bon Secours Health System Limited[2012] IEHC 21;Hurley v An Post[2018] IEHC 166;McCarty v ISS Ireland[2018] IECA 287;Allen v Independent NewspapersUD641/2000;Gallery v Blarney Woollen Mills[1990] ELR 143;Glicia v The Bagel Bar Franchise Company LimitedUD1271/2013; andSchonfield v Westwood Club ClontarfUD1013/2013. Mr Walsh BL for the Respondent furnished the Court with a lengthy written legal submission in which he cites several authorities in relation to the law on constructive unfair dismissal. However, he places particular emphasis on the following two decisions in support of his submission that the Complainant in the instant case has failed to demonstrate that the Respondent’s actions were so unreasonable towards him as to justify his decision to resign his employment:Berber v Dunnes Stores[2009] ELR 61 andBarry v Quinn InsuranceUD1775/2010. InBerber, the Supreme Court held that that in the context of a claim of constructive dismissal, an objective test must be used to assess the employer’s behaviour: “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.” In its determination inBarry, the Employment Appeals Tribunal states “Having carefully considered the totality of the evidence adduced the Tribunal could not find any substantial grounds that a dismissal took place in this case. The Claimant did not produce sufficient and adequate evidence that the respondent dismissed her even in a constructive fashion. The Claimant did not act reasonably in resigning. She did not appeal the outcome of [the] company's decision in relation to her complaint of bullying and harassment. The Tribunal notes that KOC's manner and that certain strong language was used, which is unacceptable, but this in itself was not sufficient reason for the Claimant to resign. Except in very limited situations an employee must exhaust all avenues for dealing with his/her grievances before resigning. Therefore, the Claimant’s claim under the Unfair Dismissals Acts, 1977 to 2007 fails.” Counsel submits that the Respondent in this case treated the Complainant reasonably and fairly such that it is unreasonable for him to seek to have his voluntary resignation deemed a constructive dismissal. Counsel, on behalf of the Respondent, submits that the Complainant was employed in a high-pressured environment with very stringent deadlines by which each stage of the construction and fit out of the project had to be completed. This inevitably led to stresses and strains which manifested in sometimes less than ideal communications between the Complainant and his manager. However, the Respondent carried out a fair and impartial investigation into the Complainant’s allegations against his line manager. Although, those complaints were not upheld, the Complainant had an opportunity to appeal the outcome of the investigation but he chose not to avail himself of that opportunity. Furthermore, the Respondent made every effort to facilitate the Complainant’s return to work from certified sick leave in the weeks prior to his resignation, including making an offer of independent mediation, all of which efforts were rejected by the Complainant. Counsel’s concluding submission to the Court is that the Complainant’s, and not the Respondent’s, behaviour was unreasonable in all the circumstances and on that basis the Court should reject the within appeal. Determination Having regard to the evidence of the witnesses, it appears to the Court that the Complainant’s first complaint against his line manager in July 2017 was dealt with quite informally by the Respondent. The Complainant does not appear to have taken issue with this and, in fact, decided not to take up the HR Director’s offer to discuss the matter further on the latter’s return to the office after a short period of annual leave. The complaints raised by the Complainant in November 2017, on the other hand, were formally investigated by the Respondent in accordance with its own policies and procedures. The Complainant did not agree with the findings but inexplicably did not avail himself of the opportunity to move to the internal appeal stage. His only explanation for this decision to the Court was that he had lost confidence in the Respondent’s willingness to deal with him objectively and fairly. The Court finds Mr Morgan’s evidence in relation to the Respondent’s willingness to support the Complainant’s return to work to be both coherent and convincing. The accuracy of that evidence is borne out in the correspondence exchanged between HRS Consultants and the Respondent’s Solicitors in the period immediately prior to the Complainant’s resignation. Furthermore, it appears to the Court that the Respondent’s bona fides vis-�-vis the Complainant is further manifested in the offer of independent mediation it communicated to him on 14 December 2017. Again, the Complainant was unable to offer the Court any convincing explanation as to why he was unwilling to engage in that process with an independent facilitator. Finally, in answer to a question from the Court, the Complainant confirmed that he had given no consideration at all to the possibility of transferring to one of the Respondent’s many other sites if he believed that it would not be feasible to restore an acceptable working relationship with Mr A in Amsterdam. It has been well established in the case law that a complainant in a constructive unfair dismissal case bears a high burden of proof in order to establish that it was reasonable for him or her to resign their employment and regard themselves as constructively dismissed in response to an objectively perceived deficiency in their employer’s dealings with them. For the reasons referred to the preceding paragraph, the Court finds that the Complainant in this case has not succeeded in overcoming that high burden. The appeal, therefore, fails and the decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
