Complainant

Respondent

Anonymised Parties

An Executive Manager

A Security Company

Representatives

David Smyth BL

Gavin Cumiskey Peninsula Group Limited

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-00032771-001

05/12/2019

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

CA-00032771-002

05/12/2019

The Complainant was employed by the Respondent initially as a Security Officer and then as an Executive Manager since the 1st February 2015 until the 29th May 2019 when he resigned from the employment. He is claiming that he was constructively dismissed contrary to the terms of the Unfair Dismissals Act. He is also claiming bullying and harassment under the Industrial Relations Act. The Respondent denies the claims and states that the constructive dismissal claim was referred outside the statutory time limit.

The Complainant said that he was subjected to bullying and harassment during the course of his employment.  He said that he was the subject of isolation and exclusion by 3 fellow managers and  they communicated by email behind his back.  There was no cooperation with him in relation to staff rostering and they changed staff he had rostered behind his back.  He said that he reported this to the CEO who said e said he would deal with it but failed to do so. It continued and intensified, and he found it very stressful and made it very difficult to work in the office.

He said that in August 2018 he was appointed Security Manager for the Pope’s visit to Knock. Another manager, Mr. A and other staff were appointed to assist him. He said that Mr. A, during the course of the assignment, was uncooperative and attempted to undermine the work of the Management Team by acting in a disparaging disrespectful manner to him. He said that he felt bullied by his actions and he attempted to reconcile the issues amicably. Mr A said that he would cooperate, but he did not do so. Throughout this time, it was shown that he was in constant contact with another manager in Dublin and both appeared to be attempting to undermine his efforts. The Complainant said he contacted the CEO with a view to having him sent home, but the CEO asked him to hold on to him and he would deal with him on their return to Dublin.

On returning to Dublin the Complainant said that he gave a verbal account of Mr. A’s behaviour to the senior managers and they said that they would deal with it. He said that the behaviour became worse. He said Mr. A refused to talk to him and ostracised him and left the office when he walked in to talk to other staff. He said that he felt so bullied and harassed by the situation that he wrote to the company regarding this on the 31/10/2018, 22/01/2/2019 and again on the 5/06/2019. Management promised mediation, but no corrective action was taken. He said he suffered further bullying from another manager, Mr. B who changed staff behind his back.  On one occasion, the Complainant said that when he asked him about this he jumped up from his desk roaring and shouting in his face. He said that he was shocked and fearful for his safety and he reported it to the COO, but no action was taken. He said that after this the workplace became a toxic environment for him. 

The Complainant said that In May 2019 the CEO informed him that there were anomalies in time sheets and COO wanted to clear them up.

He attended a meeting on the 9th May 2019 with the CEO and the COO. He was not given any evidence of any wrongdoing by the COO. He said that issues were raised about payment for hours he worked for another employee, but he was able to give an explanation and address any issues raised.  He said he had facilitated colleagues by working hours for them and allowing them to be paid for the hours he worked. He said that he spoke to the CEO after the meeting and he understood that any anomalies had been cleared up and that was end of the matter.

The Complainant said that on the 17th May 2019, he received an email calling him to an investigation meeting on the 20th May 2019. A registered letter was also sent to his house including a 26 page document containing various allegations including one of falsifying time sheets. The Complainant said that he responded saying that he believed that the explanations he gave at the meeting of the 9th were accepted, denying the allegations outlined and providing further explanation about the allegations raised and complaining that he had been denied fair procedures and not given enough notice of the meeting. He also raised the bullying issues in the response and sought the outcome of the investigation. The Respondent cancelled the meeting of the 20th of May and informed the complainant the matter would be referred to an independent 3rd party for investigation.

The meeting was arranged for the 27th May 2019 and it was chaired by the COO’s sister-in-law. The complainant believed she was not an independent 3rd part as promised by the respondent. He said that he attended the meeting under duress and was dissatisfied with her conduct of the hearing. He said that he was dissatisfied with the way the meeting was run. He believed that he fully explained the allegations about signing time sheets for an employee for times the employee did not work. He said that he worked the shift instead.  He said that he only got a copy of the grievance and disciplinary procedures at the end of the meeting. He said that 2 days later he got the outcome of the investigation. He was suspended on full pay pending an investigation into an allegation of falsifying time sheets and issues with journey planners and time sheets.

In response to the suspension the Complainant said that he could not trust the process and he believed that he was not been treated fairly. He informed the Respondent he was resigning from the employment with immediate effect. The Complainant said that he was asked to reconsider the resignation, but he did not do so. He said that the treatment of him was not necessary and was unreasonable and he was treated differently to other managers who signed questionable time sheets for employees.  He said that his working conditions were rendered intolerable and he suffered stress and his position was made untenable and he had no option but to resign. He submitted that he was constructively dismissed. 

Legal Submission

It was submitted on behalf of the Complainant that there were significant failures in the investigation process and the taking of witness statements which he said were predetermined. He said that the Complainant was treated differently to other managers. He submitted that he was denied the right to fair procedures natural and constitutional justice.

Preliminary Time Limit Issues

The Respondent submitted that the Complainant, who has taken a claim for constructive dismissal under the Unfair Dismissals Act 1977, referred his claim outside the time limit under the Act.

 The Complainant resigned on the 29th of May 2019 and lodged his claim on the 5th of December 2019. The Respondent submits that six months from the date of the Complainant’s resignation is the 28th of November 2019 and the complaint should have been referred on or before that date.

The Respondent referred to the Supreme Court decision in County Louth VEC -v- Equality Tribunal [2016] IESC 40 which concerned whether a claim had been “lawfully referred” within the 6 month time limit under section 77 of the Employment Equality Act 1998. Here, the Supreme Court held;

“If a complaint is out of time and thus fails to satisfy a condition precedent, and remains so found after inquiry, then it cannot be said to have been “lawfully referred” to the Tribunal, such that it may properly be investigated for redress purposes. In addition, the statutory measure does not operate as a defence point or its equivalent only (see para. 13 supra). It must therefore be treated as a condition precedent to the exercise of the Tribunal’s jurisdiction and cannot be stood down, save in accordance with the provisions of the Act.”

The Respondent also referred to The Labour Court in Millett –v Shinkwin DEE 4/2004 stated the general rule is as follows:

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end.”

 The Respondent submitted that the Complainant is out of time to take a claim under the Unfair Dismissals Act 1977 and as such the WRC does not have the jurisdiction to hear this claim.

Substantive Submission

The Claimant was employed on the 1st of February 2015 and progressed to the role of Executive Manager due to his years of experience in the industry.

The Respondent became aware of allegations that the Complainant was covering shifts on behalf of his son. The COO requested copies of the signed time sheets and information from work colleagues on the same shifts. Following this on the 19th May 2019, he invited the Complainant to a meeting with him and the CEO also attended. The purpose of the meeting was to allow the Complainant to provide an explanation for;

- Alleged breach of PSA licencing laws.

- Alleged failure to follow a reasonable management instruction.

- Alleged falsification of time sheets.

On the 20th of May the Complainant emailed the Respondent stating that for various reasons he would not be attending the meeting and it was contrary to fair procedure and natural justice and part of a flawed process.  On this same date, the Respondent emailed him back and assured him that his right to fair procedures had not been breached, he was just invited to an investigation meeting.

To allow the Complainant ample time to prepare, the Respondent rescheduled the meeting for the 24th of May 2019. On the 22nd of May the Respondent wrote to the Complainant to telling him a third party would chair the meeting having regard to his allegation of bias. The Complainant attended at the rescheduled meeting on the 27th My 2019. The Complainant was provided with the name of the 3rd party investigator.

In the letter, the Respondent also invited the Complainant to engage in their grievance procedure if he wished to formally make complaints. On the 27th of May the Claimant met with the investigator and a note taker for the scheduled investigation meeting.  On the 29th of May the Respondent placed the Complainant on paid suspension.  On this same date the Complainant sent a letter of resignation to the COO effective immediately.

The Respondent replied to the Complainant’s resignation letter and asked him to reconsider it and to let him know his decision by the 2nd of June. On the 5th of June the he responded to the COO to let him know that he would not be rescinding his resignation. The Complainant submitted a claim to the WRC on the 5th of December 2019.

Witness Evidence

The COO said that he was surprised to see the Complainant’s son’s name on the pay role as he had been told that he was not available for work. He understood he had started a new job in a full time position.  He checked the time sheets and he believed there were anomalies in them.  He arranged a meeting with the Complainant and the CEO also attended. He said he brought the time sheets to the meeting and asked the Complainant for an explanation about the signatures on them.  He said that the Complainant admitted falsifying the timesheets.  He said at the end of the meeting he told the Complainant that there would be a further investigation of the matter and that he would let him know about the next steps.  He said that he contacted HR and he was advised a formal investigation under the procedures should take place.  The COO said that he wrote to the Complainant on the 17th May and called him to an investigation meeting on the 20th of May. He said that the Complainant refused to attend the meeting alleging bias and saying it was not a fair investigation.

He said that he sought further advice from HR and decided to remove himself from the investigation and to get an independent person to conduct the investigation and he informed the complainant.  The investigation meeting was rearranged, and it took place on the 27th of May under the independent chair. He said that the Complainant confirmed to the investigation that he worked his son’s shifts on two occasions and signed the time sheets with his son’s name. He decided to suspend the Complainant pending reviewing the investigation of these matter. He informed the Complainant by letter dated the 29th of May that he was suspended on full pay pending further investigation of the allegations. He said later that evening the Complainant tendered his resignation. He said that he wrote to the Complainant asking him to reconsider his resignation and told him he needed a response by the 2nd of June.  He said that he also told him to raise his bullying and harassment complaints under the Bullying and Harassment procedures.  The Complainant did not revoke the resignation letter and emailed him on the 5th of June confirming the resignation.

Legal Submission:

The Respondent representative referred to Section 1 of the Unfair Dismissals Act, which 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.”

The Respondent referred to the case of Debbie Kearns v Silverfern Properties Ltd. (UD2428/2010) in which it was held that “In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.”

It was submitted in the present case that the Complainant tendered his resignation as he was the subject of an investigation process concerning an allegation of fraudulently filling timesheets for work.

I was referred to the case of Nicola Coffey v. Connect Family resource Centre ltd. (UD 1126/2014) where the EAT held that “[t]he bar for constructive dismissal is very high.”

In A General Operative v. A Religious Society (ADJ-00002814) it was held by the Workplace Relations Commission that in claims of constructive dismissal:

“The critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the complainant’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.”

The Respondent submitted that it was relying on the case of Ruffley v. The Board of Management of St Anne’s School 2017] IESC 3.  Charleton J held.:

“Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to point out faults. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instill a work ethic or to save a job or a career by an early intervention.

Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit.”

The Complainant alleged that he was bullied by management whilst being brought through an investigation process. The Respondent rescheduled meetings on a number of occasions to facilitate the Complainant and brought in an external investigation officer to ensure that there was no bias.

In the case of Donegan v Co. Limerick VEC (UD828/2011) the Tribunal held that “the respondent’s conduct was not so unfair or damaging to the claimant’s rights and entitlements that she had no option but to resign from her position.”

The Respondent had suspended the Complainant on full pay in order to complete further investigations. The act of suspension is not a disciplinary sanction.

In the case of Higgins v Donnolly Mirrors Ltd. (UD 104/1979) (taken from Mary Redmond, Dismissal Law in Ireland, 2nd Edition) the Tribunal rejected the Claimant’s claim for constructive dismissal as she had failed to discharge the heavy onus of proof she bore. Additionally, in the case of Conway v Ulster Bank Ltd. (UD 474/1981) (also taken from Mary Redmond, Dismissal Law in Ireland, 2nd Edition), the Tribunal found that the Claimant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.”

It was submitted that the Complainant has failed to establish that he was constructively dismissed.

Preliminary Issue Time Limits

The first matter I must consider is whether the time limit for referring the complaint to the WRC has been complied with, or whether it can be extended if it can be extended where it was referred outside the time limit. 

Section 8(2) of the UD Act 1977 – 2015 provides:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

 (a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,”

The complainant resigned on the on the 29 of May 2019, he referred this case to the WRC on the 5th of December 2019. I note that the Respondent asked the Complainant to reconsider his resignation and required a response by the 2nd June 2019 and the complainant replied by email dated 5th of June saying he was not rescinding his resignation. To comply with the 6 months time limit the complaint would need to have been referred the complaint to the WRC by the 28th November, if the 29th of May was the resignation date, and by the 1st of December if the of 2nd of June was the effective date of the resignation (the date by which the Complainant was required to rescind his resignation).  If I take the resignation date as the 5th June 2019 (the date the Complainant confirmed his resignation) in order to comply with the 6 months time limit the complaint would have to be referred by the 4th of December.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           The Complainant referred the complaint herein to the WRC on the 5th the December 2019 and not within 6 months of any of the above dates. I find therefore, that this complaint was referred outside the 6 month time limit pursuant to Section 8(2)(a) of the UD Act.   The Complainant did not apply for an extension of the time limit in accordance with Section 8(2)(b) above.

For this reason, I find I have no jurisdiction to hear the complaint of constructive dismissal.

Industrial Relations Act

The Complainant submitted that he was bullied and harassed during the employment and that the Respondent failed to investigate the issues he raised. He complained about the treatment of him by 2 managers,  in particular about alleged harassment and bullying issues which arose while he was in charge of the security for the Pope’s visit to Knock and which resulted in one of the managers ignoring him on their return to the office, and the other manager jumping up and shouting and roaring him when he raised issues with him about being uncooperative and changing the assignment of staff  that he (the Complainant) had made behind his back. 

The Respondent’ case is that the complaints of bullying and harassment were resolved informally under the procedures and no further complaints were received in that respect.

I note that in the complainant’s letter of resignation of the 29th of May 2019 following his suspension that he raised concerns about trust in the investigation process which had commenced into the allegations about the times sheets and his concerns about the Respondent’s handling of the bullying and harassment complaints. I note in a response letter the Complainant was invited to reconsider his resignation and to engage in the investigation process. He was also advised that his complainant’s about bullying and harassment would be address under the Grievance Procedures and he was invited to put his complaints in writing.  The complainant confirmed his resignation and did not pursue his complaints of harassment and bulling through the Grievance Procedures. However, he did clarify to the Respondent in an email the specific bullying and harassment complaints he had made, and which were not resolved to his satisfaction.  It would appear that the Respondent believed that the complaints had been resolved informally and only became aware that he was not satisfied until after he had resigned.  I am satisfied that it was not reasonable for the Complainant to resign from the employment before the investigation was completed and before he had fully utilised the grievance procedures and allow the Respondent to investigate his complaints. In the circumstances I do not recommend granting the claim.    

CA-00032771-002

I find I have no jurisdiction to hear the complaint of constructive dismissal as it was referred out side the statutory time limit.

CA-00032771-001

I do not recommend finding in the Complainant’s favour.

Unfair Dismissals Act, 1977, Constructive Dismissal, Time Limits, Industrial Relations Act, 1969 Bullying and Harassment.