Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Robert Jacob, Jacob and Twomey Solicitors

Director

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-00020859-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00020859-002

30/07/2018

The complainant was employed as a general operative by the respondent commencing employment in August 2016 on a weekly wage of €400.00 gross.  The complaints allege that the complainant was subjected to discriminatory behaviour during his employment and that the behaviour and attitude of the Managing Director of the respondent was such that the complainant was left with no option but to resign from his employment.  The date of termination of employment was 4 May 2018 and the complainant alleges that he was constructively dismissed on that date.  The complaints were lodged with the WRC on 30 July 2018.

This matter was heard by way of a remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI No. 359/2020 which designate the WRC as a body empowered to hold remote hearings.

The complainant was asked totally inappropriate questions at his job interview.

The complainant witnessed occasions when staff were threatened with dismissal and was aware of other acts of erratic behaviour on the part of the MD.

The complainant along with the other staff was suspended from work without notice in April 2018 and it required legal intervention to get the staff back to work.

On 4 May 2018 the complainant was questioned in a very aggressive manner by the MD about a picture that had been removed by an ex-member of staff from the MD’s office.  The attitude of the MD was such that the complainant feared for his own safety and consequently resigned.

Any questions about family, etc. were just social chats and would be normal in the home country of the respondent’s parent company.

The closure of the Irish workplace in April 2018 was to allow the staff a break from a negative atmosphere that the MD believed existed at that time.  All staff were subsequently paid for this time.

The MD was concerned that some person had entered his office and removed an item without anybody stopping them and the complainant was questioned in this regard.

The complainant, after walking out, was contacted and asked to return.  The complainant insisted that he was resigning and his resignation was then accepted.

The complainant stated in evidence that at his job interview in August 2016 he was questioned with regard to his marital status, asked whether he had children and when he said that he had two was then asked why so few and if there was something wrong with his manhood.  He was also quizzed about his home and mortgage. 

The complainant commenced employment as a general operative on 29 August 2016.  The respondent was a company which intended to commence a manufacturing facility in Ireland making machinery for the international medical market.  The complainant was employed at the start-up phase and part of his duties was to ensure that the premises were brought up to standard as regards Health and Safety requirements.  The complainant stated that at times he would also do personal jobs for the MD.  The complainant said that during this time he had seen some office staff in tears because of some event in work and had also witnessed an employee being dismissed for being genuinely absent on sick leave.  The complainant also said that he was not aware of any grievance procedure being in place at that time.  The MD was absent in his home country for a lot of the time and the complainant took his instructions from the Office Manager.

In 2018 the complainant was made aware of issues involving other members of staff, in particular being instructed to pass off machinery at a trade fair in Dubai as having been manufactured in Ireland and being certified for sale in Europe when in fact they were made in South Korea and were uncertified.  Staff attending the fair also spoke of derogatory and discriminatory remarks being directed towards them by the MD as well as threatening behaviour. 

On 1 April 2018 the MD arrived at the Irish premises dressed in traditional Arab dress and made a statement to the effect that he was here for a fight and had his “body armour” on.  On 3 April the complainant was called to the MD’s office and asked to source new staff who had expertise in PPE equipment.  The complainant said that he pointed out that this was a task normally performed by the Office Manager and the MD replied that the complainant should “go over her head”.

On 9 April the Office Manager came down from her office with her phone in her hand.  She put the phone on speaker and the complainant heard the MD state that the staff should “evacuate” the building.  The staff left the premises and later contacted a solicitor who wrote to the respondent on their behalf regarding the employees’ employment status.  The result was that the staff returned to work on 16 April and were paid for the period of non-attendance at work.

This series of events resulted in a number of employees, including the complainant, submitting formal written complaints in relation to the actions of the MD.  No formal response was received from the respondent.

On the morning of 4 May the complainant was called to the MD’s office and questioned about a picture that had been taken from the office.  To the best of the complainant’s knowledge the picture actually belonged to an ex-member of the sales staff who had recently resigned and who had taken the picture with him when he left.  The MD had got very angry about this and adopted an aggressive manner with the complainant.  The MD stated that he wanted a sign put up to the effect that no one should enter his office.  The attitude of the MD so upset the complainant that he feared for his safety and immediately walked out of the building.  He submitted a letter of resignation through the Office Manager.  Later that day the complainant received a phone call from a business advisor who had been engaged by the respondent.  The advisor asked him to reconsider his position and return to work.  The complainant stated that he refused to do this whereupon the advisor told him that his resignation was accepted and that he would be paid any outstanding money due to him.  The complainant added that he afterwards heard that the same advisor had met with three members of staff later that day and informed them that they were being made redundant.  Only one member of the administration staff was retained in employment.

The MD for his part stated that the remarks made during the interview were meant as nothing more than social chat of a type that would be considered normal in his native country where the MD was based most of the year.  The MD explained that he had been invited to set up a facility in Ireland to manufacture medical machinery and had been involved in seeking premises and recruiting staff to start up the business.  The regulatory regime had, however, changed and the process required by the EU in order to get permits for the manufacture and marketing of the devices within Europe had become more complicated.  The result was that the time-frame for the manufacturing process to commence had been lengthened considerably.  Despite this he continued to employ staff in Ireland and brought some of them to trade fairs in Dubai where the parent company was based.  Prototypes of some of the machines had been made in South Korea and were exhibited at the trade fairs but the MD denied that he instructed sales staff to pass them off as Irish made.  The MD said that he became aware of a negative attitude amongst staff in Ireland and that is why he visited the premises in April.  He felt that some members of staff thought that he was rich and that they could get some sort of settlement out of him.  This perception led the MD to phone the Office Manager some days later and instruct her to tell the staff to “evacuate” the building.  The MD said that he used that word because he did not want to use the word “leave” as this could give the impression of being dismissed.  The MD said that he felt staff should have a break from the atmosphere in the workplace.

Because of the change in the expected time-frame for the commencement of the manufacturing process the MD stated that he had employed experts to examine the operation in Ireland.  The result was that it appeared that the acquisition of approval for manufacture would take much longer than originally anticipated. The project was already over budget that there would be no income during this time.  The decision was to reduce staff to a minimum.  This meant that 3 employees were to be made redundant.  The complainant was not one of those employees.

With regard to the complainant, the MD stated that he became aware that someone had entered his office and removed a picture from there.  This item had been taken without permission and it appeared that no one had tried to stop him.  That was the reason that he had questioned the complainant.  After it became known that the complainant had left the premises and had tendered a resignation one of the advisors had contacted him.  The complainant, however, had insisted that he was resigning.    

Complaint No. CA-00020859-001:

This is a complaint under the Unfair Dismissal Act, 1977, to the effect that the behaviour of the respondent was such that the complainant was left with no option but to resign.  It is, in other words, a claim for constructive dismissal.

The definition of dismissal in the Act includes the following:

The termination by an 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…

Thus, the burden of proof in a claim for constructive dismissal lies with the complainant as to whether or not it was reasonable for him to terminate his employment.  The legal test in respect of constructive dismissal was set out in the UK Court of Appeal in the case of Western Excavating (ECC) Ltd v Sharp (1978) 1All E.R. 713.  There are two limbs to the test, one as to contract and the other as to reasonableness.  The contract test was summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the heart 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 other performance”.

The reasonableness test is applied to the conduct of the employer and examines whether the employer “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving”.  These tests were endorsed by the Labour Court in Paris Bakery & Pastry Limited v Mrzljak, DWT1468.

The bar in determining constructive dismissal is set very high.  In the case of McCormack v Dunnes Stores, UD1421/2008, the EAT stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she had acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his/her grievance with his/her employer”

In the case before me there is no evidence of an intention by the respondent to breach the contract of the complainant at the time of his resignation.  As it happened, three employees were made redundant later that same day but the evidence was to the effect that it was not intended to make the complainant redundant at that time.  The trigger event was the meeting with the MD on 4 May 2018.  It would appear that the MD was extremely angry at what he considered to be an intrusion into his office.  I accept that the complainant had nothing to do with what occurred and that it was ill-judged of the MD to react in the manner that he did.  It is, however, accepted that the action that the MD requested was that a no entry sign be put up on his door.  The complainant at that stage left the workplace.

There is of course the concept of this event being the “final straw” for the complainant.  This concept is based on an employee having been subjected to a series of acts or incidents which cumulatively amounted to a repudiation of the contract by the employer.  The “final straw” has to contribute, however slightly, to the breach of the implied trust and confidence.  The series of actions of the employer cited by the complainant in this regard are the inappropriate remarks and behaviour of the MD, the raising of concerns in writing regarding this behaviour and the lack of response to same and the aggressive behaviour of the MD.  There were of course the very inappropriate remarks made by the MD at the job interview in August 2016.  From the evidence at the hearing the next event was when the complainant was made aware of the remarks and behaviour attributed to the MD by work colleagues who attended the trade fair in Dubai in early 2018.  There had also been a strange occurrence a few weeks previously when the entire staff were effectively suspended without notice or explanation and were then reinstated after legal correspondence.  The employees were paid for that period.  Following on from that suspension the complainant together with some colleagues filed individual written grievances with the respondent.  No response was received from the respondent in this regard

 As regards the reasonableness test, the Supreme Court in Berber v Dunnes Stores (2009) ELR 61 said:

1.       The test is objective.

2.       The test requires that the conduct of both employer and employee be considered.

3.       The conduct of the parties as a whole and the cumulative effect must be looked at.

4.       The conduct of the employer complained of 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 an employee cannot be expected to put up with it.    

In looking at the actions of the complainant I note that he stated that the behaviour of the MD during the incident of 4 May was such as to cause him to fear for his own safety.  As a result, he left the work premises abruptly and submitted a letter of resignation to the Office Manager.  He was subsequently contacted by the Office Manager and asked to return to the workplace as a person who was a business advisor to the respondent wished to talk to him.  The complainant declined to do so and it was at that point that he was informed that his resignation would be accepted.   

The fact that the complainant did not seek to invoke the grievance procedure before resigning is a major factor in considering the claim for constructive dismissal.  However, in examining the series of events that led to the resignation of the complainant there is certainly evidence of unreasonable behaviour by the MD of the respondent.  The complainant would have heard the accounts of his colleagues’ experiences in Dubai, would have witnessed the MD stating that he was ready for a fight and had “put on his armour”, had experienced the staff, including himself, being suspended without notice or explanation and having to seek legal intervention to resume employment, had lodged a formal grievance without response and finally had been confronted by an extremely angry MD with regard to an action which had nothing to do with him.  On balance, therefore, I accept that there was a series of acts which cumulatively would contribute to the conclusion that the actions of the respondent were so unreasonable that the complainant could no longer be expected to put up with the situation.  In addition, given the lack of response to the employees’ grievances by the respondent the failure to utilise the internal procedures is understandable.  I consequently find that the complainant was constructively dismissed.

Complaint No. CA-00020859-002:

This is a complaint under the Employment Equality Act, 1998, to the effect that the complainant suffered discrimination on the grounds of gender, family status and conditions of employment and that he was victimised and harassed.

Section 6(1) of the Act states:

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

(a)    a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which –

(i)                  exists,

(ii)                existed but no longer exists,

(iii)               may exist in the future, or

(iv)               is imputed to the person concerned.

Section 6(2) states:

As between any 2 persons, the discriminatory grounds (and the description of those grounds for the purpose of this Act) are –

(a)    that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b)    that they are of a different civil status (in this Act referred to as “the civil status ground”),

(c)     that one has a family status and one does not (in this Act referred to as “the family status ground”)

Section 14A(7) of the Act states:

In this section –

(i)                  references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii)                references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose of violating a person’s dignity and creating an intimidating, hostile, humiliating or offensive environment for the person.

In his submission the complainant referenced the remarks made by the MD when interviewing him for employment in August 2016.  The complainant’s submission also refers to him being repeatedly harassed and victimised for having raised concerns of discrimination with his employer.  The complainant referenced being suspended from employment.  All staff, however, were suspended from employment.  The complainant in his evidence did not provide any further, specific examples of this continuing behaviour.  The only example of the complainant actually making a complaint was with regard to the written grievance lodged in mid-April. 

Section 85A of the Act states:

(1)    Where in any proceedings facts are established by or on behalf of the complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The interpretation of this section has been considered by the Labour Court in Southern Health Board v Mitchell (DEE011).  The Court stated that “a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

The clear example of discriminatory behaviour on the part of the respondent relates to the remarks made by the MD at the job interview.  Section 77(5) of the Act states:

Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of 6 months from the date of occurrence or, as the case may require, the most recent act of discrimination or victimisation to which the case relates.”

The interview took place prior to employment in August 2016.  It follows therefore that a complaint with regard to that matter is out of time and cannot be considered.  As regards the other elements of the complaint, I am not satisfied that the complainant has established facts of sufficient significance such as to give rise to presumption of discrimination.  I find therefore that the complaint is not well founded   

Complaint No. CA-00020859-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015.  I find that the termination of the employment of the complainant was a constructive dismissal and that the claim for unfair dismissal is well founded.  I do not have much evidence with regard to mitigation on behalf of the complainant.  Having regard to all the circumstances I order the respondent to pay to the complainant the sum of €4,500.00 which I consider to be just and equitable.

Complaint No. CA-00020859-002:

This is a complaint under the Employment Equality Acts, 1998 – 2015.  For the reasons set out above I find this complaint not to be well founded.