Complainant

Respondent

Parties

Philip  Smith

Dublin Airport Authority Services Limited (DASL) Daa

Representatives

  Philip Smith

 Brendan O’Hanlon, DAA

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-00033474-001

31/12/2019

A photograph of the complainant, Mr Smith, was uploaded by persons unknown, from Facebook onto a computer used for training purposes by his employer Dublin Airport Authority.  Mr Smith was not satisfied with the steps taken by the employer following his complaint and, in particular, was aggrieved that the respondent did not accede to his request to work in a different Terminal.  He subsequently resigned claiming constructive dismissal. 

In attendance at the hearing were;

Mr Philip Smith, the Complainant

Mr Brendan O’Hanlon, DAA

Ms Susan Melligan,  DAA

Ms Angela McHugh, DAA

Ms Laura Hackett, HR Executive, DAA 

Evidence was given under oath by the complainant Mr Smith, and the Human Resources Executive Ms Hackett. Cross examination took place of the witnesses.

A complaint form was received from the complainant and a further written response to the respondent’s submission.  A written submission was received from the respondent.

On Monday July 1st a personal photo of the complainant was taken from the Internet by a person unknown, and saved to the desktop and screen saver of a work computer which was supposed to be used solely as a training tool for Airport Search Unit employees. The complainant first found out about the picture on Tuesday the 2nd of July when he was confronted by a staff member who had received a picture of the picture on his smart phone and showed it to the complainant while laughing at the same time. As the day went on more and more people approached the complainant about the picture commenting on his appearance and laughing about it. The complainant told his supervisor about the photo and how he was being made feel by his colleagues. The supervisor at the time showed very little interest in the matter and told the complainant to let her know if he found out who had put the picture there. This was unsatisfactory as the complainant was expecting the supervisor to take the issue a little more seriously.

On Wednesday the 3rd of July 2019, on entering the workplace, a further three people passed comments on the picture that had been placed on the training computer. One colleague said that the complainant should not have put that there and told him to take it down before a member of management cautioned him for putting it there.  At this point the complainant had no choice but to escalate the issue to the duty manager as the supervisor was not able or willing to help resolve the issue. It was now almost 48 hours since the picture had been put on the computer and still nothing had been done by any of the supervisors or managers. The complainant informed the Duty manager about the issue and that it was upsetting him and causing him a lot of stress and anxiety about going to his place of work.  The Duty Manager made a phone call to the IT Department and asked them to take the photo off the computer, delete it and see if they could find out who had put it there. They could only delete the picture and tell the Duty Manager what time and date it was put there.

The complainant explained to the Duty manager the difficulties he faced in work as a result of the picture and questioned how it was able to happen and what was going to be done to prevent this happening again.  The Duty Manger told him that IT had deleted the picture from the computer and he was going to brief staff on what the computers were to be used for and not to take personal information or images of staff members and put them on the computer. Later that day one of his colleagues informed the complainant about the signs that had been put up in the computer room, break room and staff briefing area, that warned staff that the Computer Based Training computers were strictly a training tool and any staff member caught using it for anything else would be liable to disciplinary and/or termination of employment. These signs only furthered the amount of bullying the complainant received. Throughout the day on the 3rd of July 2019, he had several people comment on the picture again and, in addition, a small number of colleagues had confronted the complainant in a more aggressive manner accusing him of trying to get people sacked by having the Duty Manager involved and putting signs up that warned staff of the use of training computers. The complainant then informed his supervisors and managers about the comments made towards him about the picture and the signs which he had nothing to do with. The supervisor went and spoke to the people who passed the comments. Later that day the same people came to talk to the complainant and again in a very aggressive manner accused him of trying to get them sacked.

As a result of everything that had happened from 1st – 3rd July the complainant felt that his only option was to escalate this issue to a member of the HR department on 4th July 2019.  The complainant spoke to Ms Laura Hackett and explained the situation.  He expressed his desire for a transfer to a different department.  Ms Hackett said she would inquire into the background to the issue and also the request for a transfer. When the complainant informed her that he was unfit to return to work Ms Hackett informed the Duty Manager.  However the Duty Manager said that the operation required the complainant to return to the shift.  When the complainant returned the Duty Manager brought him to the staff room to discuss the issue.  He then deployed the complainant to the VIP screening area.

When the complainant was reporting back to duty and proceeded through the staff entry security point he was again questioned about the picture and, on arrival to the VIP post where he was greeted by the staff on duty and the first thing one of the officers asked him was what was the story with his picture on the training computer and did he put it there. The complainant avoided the question and 15 minutes later when a new person arrived to the post he was asked by them why his picture was on the computer and who put it there. Later that day he was again confronted by a member of staff who had an issue with the complainant as he had told the supervisor about the comments they made to the complainant on 3rd of July and told him that they would remember that.

It was after all of this that the complainant could take no more of the mental abuse, bullying and victimization by his colleagues he went to the doctor who advised him that he was not fit to work.

The complainant requested a copy of the company’s grievance procedure. Ms. Hackett invited him to meet with herself and one of his line managers and advised him of his right to bring a work colleague with him but not someone unconnected with the organisation.  This was unreasonable as as the person(s) who had targeted the complainant were still unknown and therefore this was not an option and with it not being possible to bring someone unconnected with the organisation the complainant felt intimidated by this offer given the company was aware of his situation. Furthermore, the company doctor had advised the complainant of the length of time a grievance procedure could take. With no definite end date he was not prepared to put himself through any more mental turmoil and in order for him to start rebuilding his confidence he felt he had no option but to leave his position.  He emailed Ms Hackett informing her that he felt he had no alternative other than to consider leaving his position at that time as the original issue had not yet been resolved and subsequent communication with HR was not progressing in a way for him to safely return to work.

Mr Smith commenced employment with the company on 1st November 2016 and he resigned in September 2019. Mr Smith claims that he had to leave his employment due to the conduct of his employer.  The respondent contends that no such dismissal took place and that Mr Smith resigned his position having failed to exhaust the agreed procedures in place to address workplace concerns.

The resignation followed an alleged incident on 1st July 2019.  Mr Smith became aware through a colleague that a photo of him taking a golf shot was taken from the internet and saved as a screensaver on one of the company’s training computers. Mr Smith claims that, after viewing the screensaver, he informed a supervisor whose response was ‘a little unsatisfactory’.  Mr Smith alleges that throughout that day he received a lot of comments and remarks about his appearance and that his colleagues were amused by it.  The following day he was also advised by a colleague that he should remove the picture before a member of management cautioned him for putting it there.  Mr Smith declared himself unfit for work from 7 July 2019 and did not return prior to his resignation on 18th September 2019.

Mr Smith contacted the HR representative, Ms Hackett, on 4th July relaying what had taken place during the past two days and sought a transfer to a different department.  Ms Hackett responded on 5th July informing Mr Smith that notices had been placed reminding staff that computers were for work and training only.  She also contacted local management to liaise with IT to minimise the chance of any future recurrence of a similar nature.  Ms Hackett advised the complainant of the EAP service available to him and asked him to reconsider his request for a transfer.

Mr Smith emailed Ms Hackett on 7th July noting his disappointment that a manager – Ms Karen Smith – had been copied in the email of 5th July as some of his observations had been critical of his line manager’s handling of the situation. He repeated his request for a transfer and stated that his doctor had noted that he would feel better when the work situation was sorted out.

Ms Hackett requested the complainant to attend the company doctor on 18th July in line with the company absence management policy. The report from the doctor confirmed that there was no medical reason to warrant a transfer to another department.  In response to a request from Mr Smith, Ms Hackett also forwarded the company grievance procedure.

Ms Hackett invited Mr Smith to attend a welfare meeting scheduled for 29th August.  She wrote again on 5th September acknowledging that Mr Smith was uncomfortable to meet the previous week and stating her concern that Mr Smith had stated that he had no alternative but to consider leaving his position.  She clarified that she had met with him previously and offered to meet again either accompanied by a work colleague or union representative or on a one-to-one basis.

On the 13th September 2019 Ms. Hackett confirmed that, if it was the claimant's preference to submit a written grievance directly to her, she would "ensure a relevant, independent party is appointed to fully investigate same".  In an e-mail on the 15th  September 2019 the claimant confirmed that he was no longer willing to meet with Ms. Hackett on a one-to-one basis. He also explained that "as the doctor has advised me the length of time a grievance procedure could take, I am not prepared to enter a process that will have an unknown definitive end date".

On 18th September the complainant sent a further email noting that the company had failed to respond to him and attaching his resignation letter.

There is an agreed process in place to address any workplace concerns that an employee may have. The claimant, having been provided with the relevant documentation, did not exhaust the relevant internal procedures--he did not raise a formal grievance, as per the Grievance Procedure, and despite Ms. Hackett recommending that he do same on several occasions. The claimant also failed to respond to invitations to meet with Ms. Hackett to specifically address any queries he may have had in relation to the Grievance Procedure.

It is well established that a claimant must exhaust all internal procedures before resigning, as set out in Keelings v Gryzbek, UD 462/2001 as follows:

"The Employment Appeals Tribunal has consistently held, and this Tribunal now holds, that, except in very limited circumstances, an employee must exhaust all avenues for dealing with his grievances before resigning. Therefore, the claimant's claim under the Unfair Dismissals Acts, 1977 to 2001 fails."

In addition, Travers v MBNA UD 720/2006, determines that it is incumbent on the claimant to utilise all internal remedies made available to him unless good cause showed the remedy or appeal process was unfair. It is clear that in this case the claimant did not utilise all internal remedies- he neither made a formal complaint, as detailed in the Grievance and Disciplinary procedures, nor did he avail of the numerous opportunities afforded to him by Ms. Hackett to meet to discuss any concerns or queries he had in relation to this policy. Ms. Hackett also afforded the complainant the opportunity to write to her directly to detail his grievance. The complainant did not avail of this offer.

As is evident from the e-mail chain of correspondence, Ms. Hackett was available at all times to advise, to support and/or engage with the complainant.  She offered to meet with him on several occasions, either on a one-to-one basis or with an employee representative or work colleague should the complainant prefer. Ms. Hackett also provided Mr Smith with her work mobile phone number should he prefer to have a call. At no point did Mr. Smith avail of any of these attempts to engage with the company.

As set out in Technician v Lloyds ADJ-00025702, it is incumbent on the complainant to demonstrate not only that their "employer's behaviour was unreasonable" but that the complainant’s decision to resign was "a reasonable one in the circumstances". In this case the respondent does not believe that the complainant’s decision was reasonable - not only was he provided with the information regarding the relevant processes, policies, and procedures he was also afforded numerous opportunities to meet with Ms. Hackett to discuss his concerns, none of which he availed of.

DAA have comprehensive grievance procedures which Mr Smith accepts he was aware of, and indeed requested a copy of.  However, despite this, he failed to use same before making the decision to resign his position. DAA made every reasonable effort to engage with Mr Smith and encouraged him to lodge a detailed grievance upon receipt of which it would conduct a full investigation, Mr Smith failed to make a complaint or provide the information necessary to conduct any such investigation.

Mr Smith failed to provide DAA with the names, dates, or times of any of the alleged incidents referred to in his complaint. It is entirely unreasonable for Mr Smith to claim that he had no alternative but to resign his position when he clearly had.

According to the information provided by Mr Smith in his complaint form, his Duty Manager addressed the issue when the offending screensaver was removed from the on the 3rd July. The same Duty Manager informed Mr Smith of his intention to remind colleagues that should only use company computers for work-related matters, which Mr Smith accepted, albeit that he "was not fully satisfied with the solution".

Mr Smith alleges in his complaint form that he told Ms Hackett he was being "bullied" however, no such complaint was ever made, or details provided.

CA-00033474-001 Unfair Dismissal

The complainant alleges that he was constructively dismissed.  Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee. In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

Not every breach of contract will give rise to a justified repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

The complainant in this case contends that he was constructively dismissed.  It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and/or, whether the conduct of the respondent was so unreasonable that the complainant had no alternative but to tender her resignation.

The complainant alleges that the employer was in breach of his duty of care to the complainant – a fundamental implied clause in a contract of employment.  In summary the contention is that the employer, though its managers, failed to deal adequately with the incident relating to the photograph being placed on the training computer and the subsequent alleged bullying resulting in an unacceptable level of stress for the complainant.  The only outcome acceptable to the complainant was a transfer to another terminal.  From the evidence provided at the hearing it is clear that the respondent considered this request for a transfer but did not deem it to be appropriate at the time which was identified as peak season. Action was taken in order to prevent a recurrence of the photograph issue, through the erection of signs, but this, in the view of the complainant, compounded the problem as it focussed further unwanted attention on him from his colleagues.

The failure to provide the complainant with the outcome he had identified as the only one acceptable – a transfer – was not necessarily the end of the road for the complainant. In this regard the extent to which appropriate grievance procedures were available to the complainant, and used to pursue and resolve his issues, is a key question in determining whether or not the respondent behaved unreasonably. From the evidence given it is clear that the respondent had procedures in place to deal with employee grievances and also interpersonal issues such as bullying.  The HR Executive, Ms Hackett, ensured that the complainant was aware of these procedures and offered him any assistance he required in order to utilise them. 

I believe that the response of the respondent to the issue of the placement of the photograph on the screen was reasonable.  Any further action in relation to bullying would have required the complainant to identify the people against whom he had a complaint if he required formal action to be taken. I therefore, find that there was no evidence of a breach of contract which could give rise to a justified repudiation and therefore the focus must be on whether or not the conduct of the respondent met the test of being so unreasonable that the complainant had no alternative but to resign. 

A grievance procedure existed within the respondent’s organisation and the complainant was aware of this procedure.  He did not use this procedure.  In John Travers –v- MBNA Ireland Limited UD720/2006 the Labour Court decided as follows;

“We find that the claimant did not exhaust grievance procedures made available to him by the respondent and this proves fatal to the claimant’s case… In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”

In giving reasons why he did not use the grievance procedure the complainant identified two objections; Firstly, the stipulation that he could only be accompanied by a work colleague during the procedure and; secondly, the doctor’s statement about the length of time a grievance procedure would take.  In relation to the first objection, it is a standard clause in most Grievance Procedures that the aggrieved employee can only be accompanied by a colleague or a union representative and this is a practical consideration particularly when trying to address matters in a speedy fashion. I don’t think it would be appropriate to negate the requirement to use Grievance Procedures based on this provision, as otherwise all grievance procedures containing such a stipulation would be ineffective insofar as an employee could refuse to use them. 

In relation to the comments of the doctor regarding the length of time a grievance would take to process I note in the respondent’s Grievance Procedure in relation to individual grievances states as follows;

Stage 2

If an employee is dissatisfied with the Supervisor's decision and wishes to pursue the matter further they may refer it to a senior manager using the Grievance Form who shall give a reply within a period of five working days, which will be recorded by way of the Company Response Form.

Stage 3

Should the parties fail to agree, the issue will be referred to the Department Head who shall give a reply within a period of ten working days, which will be recorded.

The time frame for processing complaints is clearly specified and the complainant could have insisted on this being applied particularly if he had such concerns following his visit to the doctor.

The complainant was aware of the grievance procedure and did not use it and did not show that the procedure was unfair.  I conclude therefore, that the complainant has failed to show that a dismissal occurred, and he was not unfairly dismissed.

The complainant was not unfairly dismissed

Unfair dismissal.  Constructive Dismissal.  Use of Grievance Procedures