Complainant

Respondent

Parties

Philip  McCafferty

Society of St Vincent De Paul

Representatives

  Self

Barry O Mahony BL Instructed by Damien Tansey Solicitors

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-00040891-001

09/11/2020

This is a complaint concerned with a claim of constructive dismissal by the Complainant who was employed as a van driver from 7th January 2019 until 29th June 2020. The rate of pay at time of termination was €479.29 gross weekly. The hearing of the complaint commenced on 25 June 2021. That hearing was adjourned for technical reasons. It was agreed however that the basis of the complaint of constructive dismissal centred in the main on the events between April and June 2020 where at the beginning of that period the Complainant sought to return to work following an absence on sick leave commencing in November 2019 but ultimately resigned. A bullying investigation was ongoing during the period April to June 2020 and the outcome of that investigation was not known for some months after the event. While the Complainant has referred to some difficulties he had with the duration of the investigation and the absence of a date for concluding that investigation, in the main the issue under investigation in this case is the conditions for the Complainant’s return to work and his engagement with the Employer during the period April to June 2020.

The parties are named in the Decision. Throughout the remainder of the text the generic terms of Complainant and Respondent are used to describe the parties.

The Complainant was employed on a CE Scheme as a van driver for the Respondent between 2016 and 2019. He applied for a position as an employee /driver with the Respondent and was appointed in January 2019. His probationary period expired but there was no probationary assessment at the end of the period. On 1st November 2019 the Complainant made a formal complaint about his manager and two other colleagues. He had raised issues previously with the Area President and Regional Retail Manager but says he faced bullying and retaliation as a result of these complaints. An external investigator was appointed in response to his complaints. His first contact with the investigator was 9th December 2019 and the investigation was still ongoing when he resigned in June 2020. He asserted that he had been given no timescale for completion of the investigation although he had asked for this on numerous occasions. A provisional date of August 2020 was given for completion of the investigation, but he says it was far from complete at the point when he submitted his complaint on 9th November 2020. He had submitted a dispute to the Workplace Relations Commission in April 2020 but withdrew that dispute after his resignation. He gave some details of his complaints. He went out sick in November 2019 and he did not hear from the employer after that date until he contacted HR. Five different HR personnel were assigned to his situation. He was on illness benefit for a number of months and he needed to return to work for financial reasons.

In April 2020 he tried to return to work. His doctor agreed that he was fit to return to work although he had some reservations. He had asked his employer to come up with alternative work arrangements; he was willing to go to another location in the region but was told it was not possible (this was raised by him back in November 2019). He said he had no alternative but to leave as he could not stay on sick leave, and he could not go back to the same thing. He was suffering financially and was having difficulty meeting his financial responsibilities. He asked for someone else to give him directions other than the people he had made a complaint against. HR told him on the phone that he would not have to take directions from those he had complained about, but she later denied saying this. From then on, he communicated through emails to ensure everything was written. Under the return to work arrangements he was told that the Regional Retail Manager would check in with him once a week. His problem with this was that the manager rarely goes to the depot where the Complainant worked, and he only visited around four times in 2019. On one occasion after the Regional Manager left the building the Complainant says he was brought into a room where various people were present, and he was “scolded like a schoolchild by the manager”. As far as he is concerned, having the Regional Retail Manager checking in on him weekly was insufficient protection for what he had to face on a daily basis in Ballina. There were times in the afternoon when he would require assistance in going to collections or deliveries and prior to his sick leave this involved the team leader against whom he had also made a complaint. After he was certified fit to return to work, he said the statements from the people he had made complaints against were sent to him by the investigator and it became clearer to him what had really happened and how these people had ganged up on and bullied him. He knew his workplace not safe to return to. He had suffered enough. He did not know how he had managed to work in that toxic environment before, being bullied and treated like that and he had no choice but to resign. During the investigation he found out that a memorandum of changes to his job description was sent to HR, but he knew nothing about the details of that memorandum or the changes or that it was sent to HR until he read the statements. The Complainant stated that he had encountered one of the other three employees in Ballina and was blanked completely. He had told HR in an email that there was talk around Ballina about the reaction of others to his proposed return to work.

The Complainant said that he went to his Employer in good faith and begged for help. He went to the head office in Dublin in person to present his case. At the hearing he said that a named person he dealt with in Dublin in November who said that he should go and get a cert on the following Monday rather than return to work and he was out sick after that. His position is that the Employer could not provide him with a safe place to work free of stress, bullying and harassment. He had been asked to make suggestions as to how to deal with his concerns but that was not his responsibility, that was the Employer’s responsibility to deal with those issues.

Between the evidence of the HR Manager and the submission on behalf of the Respondent details were given of the contact made by the Complainant seeking to return to work. The HR Manager gave evidence of his high degree of enthusiasm about returning to the workplace when she spoke to him in April. Due to the length of the absence the Complainant was referred for an occupational health assessment which concluded that while there were reservations in relation to him returning to work in the absence of conclusion in his grievance process,’ on balance these reservations would not be sufficient to preclude him fromreturning to work at this time. Hopefully the investigation can conclude promptly.’ The Complainant was reinstated on the payroll with effect from 27th April 2020 awaiting the occupational health assessment which was received on or around May 18th. When the Complainant initially sought to return to work the shops were shut due to Covid. Following discussions with the Complainant and the Regional Manager on 9th June 2020, HR outlined a number of safeguards which it was intended to put in place. The Regional Retail Manager engaged directly with the Complainant regarding his return (by telephone). During this discussion and in a subsequent email the Complainant did express reservations about his return to work. He referred to it not being safe... as nothing had changed and that he was not willing to take any further risks and that he did not “understand how you expected to reintroduce me to that workplace.” There followed emails between HR and the Complainant commencing on the 16th of June in which the Complainant questioned how he could return to the depot and said that “I have also been aware of things that have been said in Ballina”. (This is apparently a reference to remarks said to have been made by other employees about his return to work). On 17th June 2020 the HR Manager said:

“There seems to be confusion on your part, at no point did either P or myself advise you there would be no face to face interactions between yourself and the Respondents. The prospect of no contact would be logistically and operationally extremely difficult”.

She said that she sought suggestions from him about other ways the Employer could

“...assist in your return to work and we’re happy to deal with your concerns, however currently you’ve not shown up to work, I must remind you the shops have remained operational since 8th June, a robust support system is in place for you on your return.”

The Respondent replied on 19th June 2020 in which he referred to the health reports which voiced concerns that “the issues in my workplace were unresolved”. He referred to the length of time the investigation had taken and that he was on the receiving end of the bullying behaviour, that he had never suffered any type of stress in the past, and that he did not want to get into that again. He stated:

“Since the beginning of June, I’ve had to review my statements from my complaint for the investigator in relation to the three colleagues including the manager in my workplace and it brought it all back to me and the thought of having to return to that toxic environment where the hazard still remains has made me really anxious.”

He added:

“You have not offered me any alternative and expect me to come up with something. Therefore, I see no other alternative but to leave, you have left me with no other option.”

Further correspondence was exchanged during which the Complainant was asked to reconsider his position, and, in each email, he reasserted his intention to resign. His final email was on 30th June 2020 in which he again reaffirmed his decision to resign and asked that HR would “stop sending me emails in which you repeat that my workplace is safe when I know it is not”.

Copies of the final investigation reports were issued to all relevant parties in or around November 2020 and the Respondent gave details of the number of complaints upheld in respect of each responding employee. Some allegations were upheld but the complaint of bullying was not upheld in any instance.

Legal submissions

The Complainant voluntarily and prematurely resigned his position without influence from the Respondents, its servants or agents. Moreover, the Respondent engaged with the Complainant thoroughly and throughout his employment. The Complainant had failed the reasonableness test as set out in the Unfair Dismissals Act and he had also failed the contract test. The Complainant in this instance left his employment before the completion of the investigation and in this regard failed to complete the procedures within the employment prior to his resignation. The Complainant was under no obligation to return to work. There was significant engagement with the Complainant to assist and establish the best way forward for his return. The Respondent has demonstrated a most reasonable attitude throughout. The Respondent attempted to assess what accommodations could be made for the Complainant in the circumstances and noted that the suggestions he made at the hearing of his complaint by the WRC were not put to the Employer in the period April to June 2020 and he refused to set out any further possible accommodation. In summary the Complainant had failed to meet the standard of the two tests central to succeeding in a complaint of constructive dismissal-a breach of contract or the reasonableness test.

In her evidence the HR Manager said that there must have been a misunderstanding with the Complainant because no assurance was given to him that would he not have contact with any of his colleagues against whom he had made complaints. This was described as almost impossible, but efforts were being made to reduce contact and to use texts where at all possible. The HR Manager said the issue of having to travel with the team leader was not something she was aware of and had not been referenced by anyone including the Complainant. Asked had she considered a risk assessment given that the Complainant was referring to a hazard in terms of his return to work and the conditions there, she replied no. Asked given that she had an understanding that a report would issue in August 2020 why she did not consider leaving the Complainant on the payroll for that period of time rather than returning to work, she stated that she took advice on the matter and that under advice she was told that this would not be fair or proportionate given that those against whom the complaints were made were at work all during the period in question and it would not seem fair to pay the Complainant while he was not working. Asked how the terms of the letter of the 9th of June 2020 which set out the basis of the return to work were communicated to the other three employees, the HR Manager said that she wrote to them; she sent them the same terms informing them of the Complainant’s return to work. Asked if there was any response from the other employees, she said could not recall any response from two of the other three employees. One person had raised a question about the Complainant going into her office to return cash.

From the hearing on the second day, it was self-evident that for the Complainant, it is virtually impossible for him to separate the matters which formed the basis of his complaints from his decision that he could not return to the workplace. In many ways this case contains classic issues around the difficulties faced by an employee and the employer once a complaint of bullying is made and accepted by the employer as requiring investigation. Frequently the submission of a written statement of complaint is followed by a period of sick leave-on the part of the person making a complaint. There is great emphasis in many policies and the recent statutory instrument on mediation rather than investigation. While it may be a false hope that such a serious matter as an allegations of repeated inappropriate behaviour can be reconciled in terms of the working relationship-experience shows that once a formal process commences a genuine workable reconciliation becomes increasingly difficult as things are said on the record, by both employees and each employee is defending and repeating their position. 

When the employee making the allegation goes out sick, as in this instance, the investigation takes over, the responding employee/s is likely to be at work and the everyday business continues. In this situation, even where there is a paid sick scheme, the complaining employee is not only losing out financially over a period, but the problem is out of sight and as in this instance from November 2019 until April 2020-out of mind. There was no evidence available to rebut the Complainants contention that he was advised after the meeting in Dublin where he referred his issues-to go out sick and it is not so unlikely a scenario as to be unbelievable. This was a small place in terms of the number of staff employed and the Complainant was reporting various allegations including improper uses of resources about all of his employed colleagues (there are also volunteers about whom there was no complaint at the time). The absence of any contact with the Complainant by the employer through HR from November 2019 until he approached them in April 2020 is striking and frankly represents a form of neglect of their responsibilities to him as an employee, one who was isolated and losing financially.

What is observed frequently in such cases is that the investigation process takes over. In some employments, as in this one, the investigation takes over the employment relationship with some reference to EAP support being available. Little or nothing happens regarding the actual employment relationship and obtaining occupational health advice on if or how it would be possible to have the complainant back at work.  In this case there is some dispute as to what if any actual support was offered by the EAP service, but nothing significant turns on this aspect.  The Complainant did not raise any issue about EAP support until at or very near the end of the employment relationship. However, what is indisputable is that the Respondent showed no direct interest in the Complainant over a period approaching six months in terms of his income, his return to work, his health. Covid did become a factor during this period-but that factor applied to all of the employees in the shops. And so, while some were on Covid supports-the Complainant was on disability benefit.

Reverting to the Investigation Process, the Complainant made a remark at the hearing to the effect that he had no idea what he was getting into when he made his complaint.  By this he was referring to the duration of an investigation. This is not unusual. His one-page complaint became a forty -odd page explanatory document with complaints against three other employees. The scope of the investigation ran to 25 plus interviews with supplementary statements in response to interviews. Given the scale of the task, including the number to be interviewed and allowing that any experienced external investigator is unlikely to have only one such contract at any time, that it took a year to issue the initial reports is not at all surprising. This aspect merits comment because there can be little doubt that the Complainant could never have expected to be out for many months-or what transpired to be a year- waiting on a report when he first made his complaint. At the time when he sought to go back to work it is a matter of fact that he had no indication of when the investigation would conclude. Indeed, at that stage-April 2020- he had not seen any of the statements made to the Investigator either by himself or any other person. During exchanges with HR in June 2020, he was told of an indicative date of August 2020, so it is not correct of him to say that when he resigned he had no idea when the report might be due.

Some overall observations on what can happen in situations where an employee makes a complaint of bullying are merited in this case because they do form part of the backdrop, there were issues raised about the delays and the lack of contact and the financial effect on the Complainant raised by the Complainant and these do merit mention in terms of their importance to him. What arises for consideration is whether those background aspects are material to the complaint of constructive dismissal. Ultimately while not condoning in any way the fact of no contact designed to return the Complainant to work prior to April 2020, the fundamental question to determine is whether the Complainant has met the high bar for any Complainant in establishing a case of constructive dismissal having regard to the contract and reasonableness tests and the failure to allow the investigation process to be completed before he resigned.

In terms of the contract test as defined by the Unfair Dismissals Act, the following are the terms of that section of the Act:

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 reasonable for the employee, to terminate the contract of employment without giving prior notice to the employer.’

The test was characterised by the Labour Court in Paris Bakery & Pastry Ltd v Mrzljak DWT 68/2014 as circumstances in which ‘the employer behaves in a way that amounts to a repudiation of contract.’

The argument from the Complainant in this case is that the employer was obliged to provide him with a safe place of work and the terms set out in the letter of 9 June did not provide him with a safe place, primarily because he would have direct contact with the people against whom he had made his complaints and the absence of any on site supervision. He referred to incidents he had when he had complained previously and again spoke about the issues which caused him to complain, the claim that he was blanked by one of the same employees when he encountered her in the town and the word around the town about the reaction to him returning to work. He was promised he would not have a direct line report in his first conversation with the HR Manager, but she reneged on this saying there had to be some direct contact.

Arising from the forgoing points-the question is whether the Employer was insisting that the Complainant work in an unsafe environment, or in the alternative was it a safe environment. The conclusion on this point is that the Respondent HR Representative did not know or could not have known if it was a safe environment. She had not read the full text of the complaint/s under investigation; she had not spoken to the other employees; she did not know if the allegation of talk by the same employees regarding his return to work was true and she did not follow up on his assertion that he was blanked by one of the other employees outside the workplace. She did know that one of the other employees had reservations about working directly with the Complainant. She did not seem to know that the Complainant would do deliveries accompanied in the van by one of those he had complained about. In circumstances where the Occupation Report was qualified ‘with reservations’ where the Complainants own GP had expressed reservations-the conclusion is that the HR Manager was required to take references to a toxic workplace and hazard-both terms used by the Complainant in correspondence- very seriously.

Accepting that she was very taken with the Complainants initial enthusiasm about returning to work-that occurred before the Occupational Health Report; before the shops re-opened and before he was informed in writing of his working arrangements or that it would be August at least before the investigation report was available. In summary an employee reported a work hazard-and no steps were taken to risk assessment of that hazard. To be frank-expecting any unsupervised direct contact between the parties must have held a high degree of risk and given the emotions expressed by the Complainant-that might not have altogether a one-sided risk. In the circumstances I am led to the conclusion that the failure to risk assess the hazards identified by the Complainant and insisting that the only option open to the employer was for him to take on that risk does not meet the requirement to ensure or be able to reassure an employee that they are facing into a safe place to work. Frankly how anyone thought this was going to work without direct supervision is beyond comprehension.

In conclusion it was reasonable of the Complainant to terminate his contract of employment in circumstances where he was expected to work in an environment where his concerns about a safe place to work and potential hazards were not understood and crucially, were not addressed.

Once the Complainant has satisfied the contract test strictly speaking it is not necessary to deal with the reasonableness and allege failure to complete the grievance procedure. For the sake of completeness however the treatment of the Complainants concerns about health and safety are not found to be the product of indifference or any malice towards him. And the offer to him to make suggestions cannot be ignored-if anything he was unreasonable on this aspect when it materialised at the hearing that he could have made suggestions which he would have been satisfied with and may have been workable but did not do so. He was dealing with a HR manager-he knew the operation better than she, there is no principal which means that it was only their responsibility to come up with solutions when he was the one with the problem. And it cannot be ignored or forgotten that it was the Complainant who sought to return to the workplace and pushed both his own GP and Occupational Health to allow him to do so-in spite of their reservations.

The aspect of the defence that the complainant did not see out the procedures relates to not seeing out the investigation of his complaints. This is rejected in the circumstances of this case. It was agreed at the outset of this hearing that the investigation process was not the reason for the termination of the employment relationship and neither the conduct of the investigation or the outcome were explored at the full hearing. It cannot be then introduced as a case against the Complainant and neither was it suggested by the HR representative that a decision to terminate the employment relationship prior to the completion of the process would be held against them. This case centres on the return to work arrangements proposed by the Respondent and rejected by the Complainant all in June 2020.

Turning to redress compensation is the only realistic redress in this case given all that was said by the Complainants about never being able to work there again. Compensation is limited by two factors.

Firstly, the failure of the Complainant to inform the Respondent of the conditions he could have worked in after 9 June 2020 even though he had practical measures to suggest.

Secondly the absence of any evidence on the part of the Complainant that he made serious, sustained and genuine efforts to obtain employment either as a driver or any other occupation until relatively recently and then only through one source. He had not worked since the end of June 2020 to the date of the hearing. Compensation is limited to six weeks gross pay in all the circumstances.

CA-00040891-Unfair Dismissals Act 1977-2016

The complaint brought by Philip McCafferty against the Society of St. Vincent De Paul is well founded. The Respondent is to pay the Complainant €2875.74 compensation.

Constructive Dismissal/Bullying Complaint