Complainant

Respondent

Parties

Thomas Murphy

Kilsaran Concrete Unlimited Company

Representatives

Paul McGlynn, HRS Consultants

Paul O'Brien, Stratis Consultants

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-00036485-001

02/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00036485-002

02/06/2020

The complainant is a machine / plant operator and he worked for the respondent since September 2004.  At the time of his resignation in December 2019, he worked with a team of four operators in the block-making facility.  His weekly pay was €712.45, inclusive of a 25% shift allowance.  Due to the way he was treated by another employee, the complainant suffered from work-related stress and on September 11th 2019, he went out sick.  He claims that, on December 2nd, he was forced to resign.  He argues that his resignation was a constructive dismissal.  In contravention of section 15 of the Organisation of Working Time Act 1997, he also claims that he worked in excess of 48 hours a week.

The respondent’s case is that the complainant resigned on December 2nd 2019 in order to commence working with another employer on December 4th.  They argue that he cannot substantiate a claim of constructive dismissal because he did not address the issue that caused his resignation by raising a formal grievance. 

Chronology of Events that Led to the Complainant’s Resignation

At the end of the shift that finished at midnight on August 7th 2019, the complainant and a colleague were cleaning a pit under a machine.  I will refer to this colleague as “Frank.”  The complainant and Frank had an argument about the job and Frank left the premises, leaving the complainant to clean up on his own.  He finished work at 00.30.  The following day, the complainant reported the incident to the plant manager, Mark Nolan.  Mr Nolan offered to speak to Frank but, in the end, they decided not to do anything.

On Wednesday, September 4th, Frank and another employee asked the complainant to help them to deal with a production issue.  They had an argument again when they were trying to resolve the issue and Frank shouted at the complainant in an aggressive manner, sizing up to him, shouting at him, spitting in his face and calling him names.  The complainant told a supervisor what happened and the supervisor advised him to report it to Mr Nolan.  On Friday, the complainant informed Mr Nolan about the incident.  In a letter to the HR manager on January 15th 2020 (after his resignation), he said that Mr Nolan again offered to speak to Frank but that they decided to “leave it” because the claimant and [Frank] would still have to work together and by Mr Nolan speaking to him, it might cause more friction.

Another altercation occurred that day, Friday, September 6th, when the complainant refused to stop the plant so that he and his colleagues could eat fish and chips which they got for lunch on Fridays.   His letter of January 15th states that he felt that all the team was annoyed at him and that he was starting to feel isolated.

At almost midnight on the evening of Saturday, September 7th, Frank sent four text messages to the complainant, a copy of which Mr McGlynn submitted in evidence.  It is apparent from one of the messages that Frank thought that the complainant had informed management about certain conduct that he wasn’t happy for them to know about.  One message shows that he said to the complainant, “I’ll have your life ruined in a day.”  A copy is provided of a final message from Frank in which he suggests that they should have a coffee in the morning and “clear all this shit up.”

Around the same time that night, another employee sent the complainant a copy of a text message he received from Frank telling him that he shouldn’t talk to the complainant, who he described as “a rat.”

The complainant went to work on Monday, September 9th, but he was stressed, anxious and uncomfortable around Frank.  He felt that Frank was talking about him to his colleagues and he felt intimidated.  He told a shift team lead about what was going on.  He was advised to speak to Mr Nolan on Wednesday, when he would be back from a business trip in Germany.

The following day, Tuesday, September 10th, the complainant was very stressed out at work.  In his submission, Mr McGlynn said that only two of his colleagues spoke to him, with one acting as “go-between” between the complainant, Frank and another man.  The complainant spoke again with the team lead, becoming overwhelmed and on the verge of tears.  Mr McGlynn said that he struggled with why he was feeling so emotional and he was embarrassed and anxious.

The next day, Mr Nolan was back on site and around midday, he came into the factory and had a conversation with Frank on the factory floor for about half an hour.  He then spoke to the complainant about a work-related issue.  The complainant felt overwhelmed at this.  He couldn’t understand why Mr Nolan had spoken to Frank and not to him.  At 13.50, Mr Nolan rang the complainant and they met in his office.  In the complainant’s submission, Mr McGlynn said that Mr Nolan conceded that the complainant “had a case” against Frank, but he said that Frank had a case against him also.  He said that Frank alleged that, on September 6th, when they had the argument about stopping the machinery at lunchtime, that the complainant commented that Frank just wanted to go out to his car to smoke weed.  The complainant said that he might have said that he wanted to go out for a smoke.

It is apparent from both submissions that Mr Nolan did not encourage the complainant to pursue a grievance or to make a formal complaint about Frank’s behaviour.  Mr O’Brien’s submission shows that Mr Nolan suggested that they “can sort it out” and that, for four weeks, Frank would be assigned to a different team in a different factory and that he would be not be working in the same factory as the complainant.

The next day, Thursday, September 12th, the complainant sent a text message to Mr Nolan to let him know that he had to go to his doctor.  He was certified as suffering from work-related stress.  In a phone call with a colleague on Monday, September 16th, the colleague told the complainant that the operations manager, Mr Brady, had asked him if the complainant slept on the job.  The colleague told the complainant that he reassured Mr Brady that this did not happen.  In the complainant’s submission, he said that he panicked where he heard this.  He felt that Frank was speaking to managers about him.

The complainant did not return to work the following week, and, on September 17th, Mr Nolan sent him a message to ask him to phone him.  He told Mr Nolan how he was feeling and, for the first time, he said that he felt listened to.  He said that Mr Nolan told him to take some time off and to “not be letting it all get to him.”

Over the next few weeks, the complainant stayed out of work on sick leave and  Mr Nolan checked in with him by phone and text message.  He continued to suffer from stress and panic attacks and he was prescribed anti-anxiety medication.

On October 17th, Mr Nolan asked the complainant if he would meet him and the HR manager and the operations manager to discuss his absence.  Although he was feeling miserable, the complainant agreed to a meeting which was scheduled for Tuesday, October 22nd.  The complainant attended the meeting with his wife, and Mr Nolan was accompanied by the operations manager, Mr Brady.  At the meeting, Mr Nolan confirmed to the complainant and his wife that Frank was working at this normal job in the same team that he had been in when the complainant went on sick leave.  The plan was to move him when the complainant came back to work.  A copy of an email submitted in evidence by the respondent shows that, on October 25th, Mr Nolan sent a message to the HR manager, summarising the outcome of the meeting with the complainant and his wife:

§    The complainant seemed fine with the idea of coming back to work;

§    He was disappointed that Frank was still working in the same place;

§    He did not want to return to the same work location;

§    He was offered the possibility of a different role and he seemed to be happy with that;

§    He was on medication but was looking forward to coming back to work.

From the complainant’s perspective, the outcome of this meeting wasn’t so upbeat.  His submission states that he felt “deflated and misunderstood.”  In the weeks that followed, he said that his doctor advised him that the workplace “didn’t seem like the right place for him to go back to.”  In late November 2019, he met with Mr McGlynn of HRS Consultants, and asked him to represent him in discussions with the company. 

On November 21st, Mr Nolan received an email from the HR office of a government department, seeking a reference for the complainant. 

During a phone call with Mr Brady on November 25th 2019, the complainant asked if he could be made redundant.  As his role was not redundant, this suggestion wasn’t taken up.  In a phone call with Mr Nolan on December 2nd 2019, the complainant resigned.  He confirmed his decision in an email to the HR manager the following day.  In his email he said,

“…it disappoints me greatly that my many attempts to reach out and discuss this decision face to face has been rejected and there has been a complete lack of duty of care in relation to these requests.”

The HR manager, Ms Lennon wrote to the complainant and said that his letter of resignation was the first indication that he wasn’t happy with how his issues at work were being dealt with.  She invited him to a meeting to address his complaint.  A meeting took place off-site on December 17th.  Mr McGlynn accompanied the complainant and Ms Lennon and Mr Brady attended for the respondent.  There was no mention at the meeting of the fact that the complainant had commenced working with the government department.  Mr McGlynn proposed that a financial settlement be offered to the complainant, or that his grievance be formally investigated.  On December 19th, Ms Lennon wrote to Mr McGlynn to confirm that the company would investigate the complainant’s grievance and she asked that he submit his allegations in writing.  A submission was sent to the company on January 17th 2020.  Ms Lennon sent a letter to the complainant in response, letting him know that all the relevant parties would be interviewed and that she intended to have the investigation completed in six weeks.  The complainant was asked to confirm if he had taken up a job with a new employer.  He did not reply, although Mr McGlynn wrote to Ms Lennon to say that he and the complainant would co-operate with the company’s investigation. 

It is apparent that no investigation was carried out, and the complainant submitted this complaint to the WRC on June 2nd 2020.  In Mr McGlynn’s submission, he said that the reason for the delay was due to the fact that his office was closed for a period up to June 2020 because of the outbreak of Covid-19.  In accordance with section 41(8) of the Workplace Relations Act 2015 – 2021, I have decided to accept this explanation as a reasonable cause for the delay.

In Mr McGlynn’s submission, he said that the complainant “suffered from appalling treatment by another employee” and that this caused him a huge amount of stress, with the result that he dreaded going to work.  He said that the treatment consisted of verbal abuse and threats and threatening text messages.  When he told the plant manager about these threats, the complainant was advised that he would be bringing trouble on himself if he complained.  The manager offered to keep the other employee, who we have referred to as “Frank,” away from the complainant for a few weeks, but he suggested that, after that, they should shake hands and “get on with it.”  Having been out sick suffering from stress, in December 2019, when he met the managers to discuss his return to work, he said that the plant manager said that his “hands were tied with what he could do.”

The complainant felt that trust had broken down between him and his employer and that he had no choice but to resign, which he did on December 2nd 2019.  The plant manager was busy and couldn’t meet him that day, and he formalised his resignation in a letter to the HR manager the next day.

Evidence of the Complainant

The complainant said that he has worked in the block plant since 2004.  He started as a general operative and has worked on various machines.  He said that he had lads reporting to him.  He said that the job was often pressurised, with a demand to produce good quality blocks.

In early summer 2019, the complainant said that he had “a couple of run ins” with Frank.  He wanted to get more work done, but the lads would be resisting.  He said that Frank could be aggressive.

In August, the complainant said that he was trying to get work done so that they could make their bonus, but he said Frank was “not in great form.”  He described the incident around midnight on August 7th, when Frank left him to finish a job on his own.  He reported this incident to the plant manager, Mr Nolan, the following day, but they decided that no action should be taken about it.

On September 4th, the complainant said that they had a problem making blocks and that “the lads left early” and he had to finish on his own.  He reported this to Mr Nolan.

The complainant said that his relationship with Frank was “hit and miss.”  Sometimes things were good, and other times, he was aggressive, using bad language and he wouldn’t do anything.  On September 4th, the complainant had to get into a cage to fix a problem and he nearly got injured because Frank didn’t take proper care on the job.  On September 6th, he told Mr Nolan what had happened, but he didn’t speak to Frank about it.

The complainant described the text messages he received from Frank on the night of September 7th.  When he went into work on Monday the 9th, he said that he felt very awkward.  Frank had sent him a text to say that they needed to sort things out, but he didn’t speak to him in the factory, and ignored him.  The complainant said that “the boys were on his side.”

He also described the experience on September 11th, when Mr Nolan returned from Germany and had a conversation with Frank for 30 minutes on the factory floor.  When he met Mr Nolan afterwards in his office, he said that he strongly discouraged him from complaining.  He said that he would separate the complainant and Frank for a few weeks.

The complainant said that he couldn’t believe what he was hearing.  He was very emotional and he wanted to go home.  When he got home, he was upset.  His wife advised him to go to the doctor and he got a cert for two weeks.  He also went on anti-anxiety medication.  After that, the complainant said that “trust was gone” and he started looking for other jobs.

When he had been out sick a few days, the complainant said that his colleague from work phoned him and told him that the operations manager was asking if he was sleeping on the job.  He said that he was very upset about this.

The complainant described the meeting with the plant manager and the operations manager on October 22nd, which he attended with his wife.  He said that Mr Nolan asked if he had difficulties at home, a suggestion that he found offensive and upsetting.  He said that, to take pressure off him, he was offered a job driving a fork-truck.  He said that he had no problem with pressure, but he felt that he had no support to deal with the problem of how he was treated by Frank.  He said that Mr Nolan said, “we’ve done everything we can,” and “our hands are tied.”

Mr McGlynn asked the complainant if there was something he could have done other than resign?  He said that there is a company handbook, but no one told him what to do.  He said that he wasn’t aware of procedures.  He felt that he had to resign and he got another job.  He said that he asked about redundancy or “a pay-off” but no one got back to him.  When he submitted his formal grievance to the company in January 2021, he heard nothing more.

Cross-examining of the Complainant

Referring to his resignation letter, Mr O’Brien asked the complainant about the “many attempts” that he said he made to avoid having to resign.  The complainant said that he spoke to Mr Nolan about the problems a number of times.

The complainant alleged that the company failed in its duty of care towards him.  Mr O’Brien asked the complainant about the 22 text messages sent by the company, three meetings and several phone calls.  Mr O’Brien said that the focus of the management was on getting him back to work.

Mr O’Brien reminded the complainant that, on August 8th 2019, he agreed with Mr Nolan that he should not speak to Frank about what happened the night before.  On September 11th, Mr O’Brien said that the complainant spoke to Mr Nolan about the incident on September 6th / 7th and he again asked him not to do anything.  Mr O’Brien referred to the email sent by Mr Nolan to the HR manager on October 22nd in which he told Ms Lennon that the complainant was happy to return to work.  The complainant said that he wanted to return, but that he didn’t feel that he could.

The complainant said that when he phoned Mr Nolan on December 2nd, he told him that he had found another job and that he wanted to resign.  He said that he didn’t realise that he had to mention this in his letter of resignation.

The complainant agreed with Mr O’Brien that he was a member of SIPTU.  He said that he went to their office in Navan for advice and they told him to report what was happening to the Gardaí.  He said that it didn’t cross his mind to speak to his shop steward.

Regarding his failure to use the grievance procedure to deal with his complaints about Frank, the complainant said, “I just thought that you go to your manager or HR.”

Mr O’Brien referred to the letter sent to the complainant by the HR manager on December 19th in which she asked him to set out his grievance in writing.  He was asked to re-consider his resignation.  The complainant said, “they all knew I had a new job.”

Mr O’Brien suggested that the complainant’s situation “seems incredibly co-ordinated,” as he resigned on December 2nd and started a new job on December 4th.  He said that the complainant didn’t give the company a chance to sort things out.

In Mr O’Brien’s submission on behalf of the respondent, he asserted that the complainant was not dismissed, but that, having asked to be made redundant, he resigned to take up a job with a new employer.  Mr O’Brien said,

“At no point did the Complainant give the Respondent an opportunity to formally address his alleged grievances against a work colleague or utilise the company grievance procedure to address any alleged grievance before he resigned…”

Mr O’Brien referred to the contract test and the reasonableness test which generally determine if a complaint of constructive dismissal can be upheld.  He submitted that the contract test does not apply, because the complainant has not asserted that the respondent breached his contractual rights.  He cited the precedents of Conway v Ulster Bank[1] and McCormack v Dunnes Stores[2] respectively, to support the employer’s case that its actions meet the standard established by the test of reasonableness.  To justify the decision to terminate his employment, the complainant will have to satisfy the reasonableness test set in out Western Excavating (ECC) Limited v Sharp[3].  Mr O’Brien asserted that the complainant cannot meet this test and he cannot establish that his employer acted so unreasonably that he couldn’t put up with it any longer.  He claimed that the complainant cannot establish that the respondent acted unreasonably at all. 

Concluding the respondent’s case, Mr O’Brien said that the complainant didn’t give the company an opportunity to address his grievance.  When he met them on December 17th, the HR manager and the plant manager were not aware that the complainant had started in a new job.

Evidence of the Plant Manager, Mark Nolan

Mr Nolan said that he is now the production manager in the factory where the complainant was employed.  He joined the company in 1996 and was a machine operator for 16 or 17 years, before he became a supervisor in 2015.

Mr Nolan said that he had a good relationship with the complainant.  He said that he was annoyed about the incident on August 5th 2019, when the complainant was left to finish the job on his own.  He said that the complainant asked him not to speak to Frank about it.  On September 6th, he repeated that Mr Nolan shouldn’t speak to Frank about the lunch-time aggression.  He said that the complainant said that it would only make things worse.

Mr Nolan said that, in September 2019, Frank has been working in the company for about a year.  He now works in a different factory.

When he came back from Germany on September 11th 2019, he heard that “the guys weren’t getting on.”  He said that he spoke to Frank in the factory, but not about what had happened the previous Monday.  Later on, he met him when he was out for a smoke and Frank said, “we’re just not getting on.”  He said that he met the complainant in his office and he asked him if things could be sorted out.  He said that he “never encouraged him not to go down the formal route.”  He said that he asked the complainant if things could be sorted out “man to man” and if they could shake hands.  The complainant said that this couldn’t happen and he didn’t come to work the next day.

During his absence, Mr Nolan said that he kept in touch with the complainant, mainly by text message.  In October, the HR manager asked him to meet the complainant.  On October 22nd, he and the operations manager met him with this wife.

Mr Nolan said that he and the complainant were friends, and not just work colleagues.  He said that, at the meeting on October 22nd, he reassured him that he could come back to work.  He was not being demoted by being offered the fork-truck role.  Mr Nolan said, “I didn’t like what was happening and I was annoyed for him.”  He said that he told him that he would find work for him anywhere in the company, and not just in the factory where he had worked.

On December 2nd, Mr Nolan said that the complainant phoned him and asked him to meet him that day.  He said that he was very busy and the complainant then told him that he was handing in his notice.  He said that this was the first time that resignation was mentioned.  After that, Mr Nolan said that he was out sick himself.

Cross-examining of the Plant Manager

Mr McGlynn asked Mr Nolan about the discussion he had with the complainant on September 11th 2019, when he strongly advised him against making a complaint about Frank.  Mr Nolan said that he was asking him if it was necessary to “go down the HR route.”

Mr Glynn asked Mr Nolan if he was therefore cutting off one way of resolving the problem.  He replied that he didn’t realise how bad things were and he thought is was “just guys not getting on.”  He agreed that he didn’t alert the complainant to the Dignity at Work Procedure, and he didn’t refer him to the HR manager.  He said that it was his policy to always try to resolve things informally.

Mr McGlynn reminded Mr Nolan that his proposal to “shake hands” with Frank wasn’t met with any enthusiasm.  Mr Nolan said that the complainant’s response was that he would talk to him the next day about it.  

On September 16th, Mr Nolan said that he spoke to the complainant on the phone and he assured him that the lads weren’t talking about him.

At the meeting on October 22nd with Mr Nolan and the plant manager, which the complainant attended with his wife, Mr McGlynn said that the suggestion that the complainant could take up a job as a fork-truck driver “put the tin hat on it.”  Mr Nolan replied that they offered the complainant a number of positions, although he agreed that the fork-truck job was offered.  He disagreed that he suggested to the complainant that he might be having family problems.

Regarding the phone call from the complainant on December 2nd, Mr Nolan said that the first five days of every month are very busy.  He said that the complainant phoned him and he told him that he could meet him the following day.  The complainant then told him he was resigning.  Mr Nolan told him that he didn’t want to see him leaving.  The complainant said that he had another job.  Mr Nolan said that he thanked him for his service and his friendship over 15 years.  He said, “if we had known how bad things were, we could have done something.” 

Evidence of the Operations Manager, Seán Brady

Mr Brady said that he started working for the respondent in 1997 as a production manager.

On September 12th, when the complainant didn’t come to work, Mr Brady said that Mr Nolan told him what had happened.  Mr Brady said that he didn’t think there was much to it.  A couple of weeks later, the complainant wasn’t back at work and he rang him asking about the possibility of redundancy.  Mr Brady said that he passed this request on to the HR manager.  As he was busy with the commissioning of a new factory, and he had no news about redundancy, he didn’t phone the complainant again.

Referring to the meeting on October 22nd, Mr Brady said that he thinks that the complainant wrongly interpreted the reference to “problems outside work.”  He said that they offered him any position he wanted in any location and the complainant said that he would think about it.  At the end of the meeting, Mr Brady said that they felt very positive and thought that the complainant would return to work.

Mr McGlynn referred to a letter that he sent to Mr Brady dated December 2nd 2019.  The subject of the letter is “Abusive behaviour fellow employee.”  Mr Brady said that he never received the letter, and that, if he had, he would have given it to the HR manager.  Also, the letter would have been referred to at the meeting on December 17th.

Cross-examining of the Operations Manager

Mr McGlynn said that, at the meeting on October 22nd 2019, the complainant was offended by the approach taken by Mr Nolan and Mr Brady.  Mr Brady said that he and the complainant go back a long way.  They played soccer together for years.  He said that the company has been able to help a lot of guys who had problems.  Mr McGlynn asked Mr Brady why he didn’t refer him (the complainant) to a formal procedure.  Mr Brady said that the complainant told him how he was feeling and that they said, “whatever you want, anywhere you want to go.”  He said that the fork-truck is a popular job, with the same pay as a plant operator.  He said, “we mentioned any job, any factory.”

Mr McGlynn said that moving the person making the complaint is not the solution.  Mr Brady said, “we went to the meeting to help, not to talk about formal procedures.  We went there as friends.”

Evidence of the HR Manager, Mary Lennon

Ms Lennon joined the company in 2008 as the Group HR manager and she is now in the role of head of strategic HR.  The company employs 700 people, up from 450 two years ago.  Around 100 are union members.  They have operations in 26 locations.

Ms Lennon said that the company has a handbook and a grievance procedure. 

On September 23rd 2019, Ms Lennon sent a standard letter to the complainant, as he had been out on sick leave since September 12th.  While he was absent, he was entitled to social welfare illness benefit, topped up by sick pay from the company.  Ms Lennon said that the medical certs are sent in to the employee’s manager, who sends them to payroll.  The first medical cert that the complainant sent in referred to a workplace injury.  This was sent to the health and safety manager.  Ms Lennon said that this was the first indication she had that the complainant was out sick.  She hadn’t been notified of an accident.  Ms Lennon said that one of the complainant’s medical certs referred to “acute work-related stress,” but the remainder simply said that he had “a medical illness” and others had no reference to any illness.  During the complainant’s absence, she said that she knew that Mr Nolan was in touch with him.

About a month into his absence, Ms Lennon said that she asked Mr Nolan to meet the complainant.  The meeting took place on October 22nd and she said that the feedback was positive.  She said, “we thought solutions were put on the table.”  She said, “in my mind, I thought that the day Tom comes back to work, we would talk to him.”  He then looked for redundancy.  Ms Lennon said, “our objective was to get Tom back to work.”  His role wasn’t redundant.

On December 3rd 2019, Ms Lennon said that she got an email from the complainant in which he said that he was resigning.  She wrote to him the next day expressing shock at his decision and asking him to attend a meeting to discuss the issues that led to his decision to resign.  On December 17th, Ms Lennon said that she and Mr Brady met the complainant and his wife, with Mr McGlynn.  The complainant looked for “a full and final settlement.”  Ms Lennon said that they told the complainant that they would carry out an investigation into his complaints.  

A document arrived from Mr McGlynn on January 17th, by which time, Mr Nolan was out due to illness.  In March, the Covid-pandemic impacted on everyone at work, and the next correspondence that the company received was the notification from the WRC in June.  She said that the investigation was initially delayed because of the absence due to illness of Mr Nolan and then, Frank’s absence.

Cross-examining of the HR Manager

Mr McGlynn asked Ms Lennon if it would have been prudent to give the complainant a copy of the grievance procedure.  Ms Lennon replied that, in a phone call with the complainant on September 23rd 2019, she made it very clear that there was a procedure for the complainant to use.

Mr McGlynn referred to the managers and supervisors being engaged in “endless informalities.”  Ms Lennon replied that managers are trained and that they know what to do.  They tried to resolve matters informally.  She said, “it was only when we got sight of the written grievance in January, that we knew that things were serious.”  Ms Lennon said that she didn’t accept that the complainant was only offered the option of taking an informal approach.  She said that two shift leaders directed the complainant to Mr Nolan, and then he went out sick.  When she spoke to him on September 23rd 2019, Ms Lennon said that she offered him the option of a formal intervention.

The Legal Framework

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal, which is described as follows:

“(b) 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 without giving prior notice of the termination to the employer…”

As a complaint of constructive dismissal, the onus of proving that he was dismissed and that his dismissal was unfair rests with the complainant.  He is required to establish facts that prove that his decision to leave his job was reasonable in response to what he considers to be his employer’s failure to deal with the conduct of his colleague. 

Context of the Complainant’s Decision to Resign

By 2019, having worked for the respondent for 15 years, the complainant was a skilled employee, with responsibility for operating machines and managing a team of workers.  It appears that he was well respected and the plant manager and the operations manager considered him as a friend.  In 2019, Frank had been with the company for about a year, and it is evident that he and the complainant didn’t get on.  The evidence shows that Frank thought that the complainant had reported some misconduct on his part, because he referred to him in a text message as “a rat.”

After the night shift of August 7th 2019, the complainant reported to the plant manager, Mr Nolan, that Frank left work in the middle of a job and he had to finish cleaning the pit on his own.  Although Mr Nolan offered to speak to Frank about this incident, the evidence of both men is that they agreed that he wouldn’t speak to him.  When the complainant reported that on September 4th, Frank became aggressive when he challenged him for putting him at risk of injury when they were fixing a technical issue, they again decided it might be best to do nothing, in case doing something caused more friction.  On September 7th, Frank sent the complainant a text message in which he threatened to ruin his life for making jokes about him smoking weed.  When the complainant brought this to the attention of the plant manager on September 11th, Mr Nolan said that he advised the complainant to sort things out “man to man,” and he asked the complainant if the two of them could shake hands.  The following day, the complainant didn’t come to work and he submitted a medical cert which stated that he was suffering from work-related stress.  He remained out of work and on December 2nd, he phoned the plant manager to say that he wanted to meet him to let him know that he was resigning.  He confirmed this by email to the HR manager on December 3rd, and he started in a new job on December 4th. 

The evidence of the plant manager and the operations manager is that they were friends of the complainant’s and they wanted to avoid “the HR route” and deal with the problem between him and Frank informally.  The problem here, from my observation, is that nothing was done, informally or otherwise, to address Frank’s behaviour.  The manager claimed that his hands were tied, meaning that he could take no action because the complainant didn’t raise a grievance. 

The plant manager and the operations manager said that they didn’t realise the serious effect that Frank’s conduct was having on the complainant.  The plant manager said that he thought it was about “guys not getting on.”  While this was true, the tone of the text message which Frank sent to the complainant on the evening of September 7th indicates that he had a more serious intent.  September 11th was the third occasion in four weeks that the complainant approached his manager to discuss the difficulties he was having with this colleague.  It must have been evident that the problem wasn’t going away.  At his meeting with the complainant on September 11th, the plant manager noticed the complainant’s sense of distress because he suggested that Frank could be moved to a different factory for four weeks.  When the complainant resigned, the plant manager said that if they had known how bad things were, they could have done something. 

The Burden of Proof in Constructive Dismissal Cases

It is settled law that an employee who claims that they have been constructively dismissed must satisfy two tests, known as the “contract test” and the “test of reasonableness.”  These were set out in 1978 by Lord Denning MR in the seminal decision in Western Excavating (ECC) Limited v Sharp (footnote 3), cited by Mr O’Brien.  The contract test was summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root 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 discharged from any further performance.”

The reasonableness test also assesses the conduct of the employer, and whether,

“…the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with any longer…If so, the employee is justified in leaving.”

To prove that his employer failed these two tests, the complainant in the case we are considering relies on the same facts – the failure of his manager to investigate the aggressive conduct of his colleague. 

In his submission on behalf of the complainant, Mr McGlynn said that by mid-September 2019, “complete trust in the employer had broken down.”  This breakdown in trust is attributed to the failure of the plant manager to address Frank’s behaviour following his meeting with the complainant on September 11th.  In light of the complainant’s initial agreement at two previous meetings that nothing should be done about Frank, it is difficult to reconcile his assertion that trust had broken down only when nothing was done after their third meeting.

Three things occurred after the complainant’s meeting with the plant manager on September 11th 2019, which, in my view, go some way towards mending what might have seemed like a breach of trust on September 11th.  Firstly, when the complainant was out sick for a week, the plant manager contacted him to see what was preventing him from coming to work.  From the text messages provided in evidence, it seems that the plant manager was patient and supportive.  Secondly, on September 23rd, the HR manager contacted the complainant by telephone to ask him about the reference to a “workplace injury” on his medical cert.  She told him that he was entitled to make a formal complaint by invoking the company’s grievance procedure.  Then, on October 22nd 2019, the plant manager and the operations manager met the complainant and his wife to discuss why he was still out of work and to make proposals for his return.  They made some suggestions to encourage him to come back to work, and, at the end of the meeting, it seems that they thought that he would be back soon.  Based on these three interventions, it is my view that the complainant cannot stand up a claim that the conduct of his managers was, as set out in the Western Excavating case referred to above, “a significant breach going to the root of the contract” or that it was so bad that it showed that they no longer intended to be bound by its essential terms.

Considering the test of reasonableness, the complainant’s evidence is that the response of his manager to his state of distress on September 11th 2019, was so unreasonable that he couldn’t go to work the next day and, that, 10 weeks later, he had to resign.  Having examined the chronology of events that led to the complainant’s absence from September 12th, it seems to me that the unreasonableness he relies on to prove his case is confined to the meeting the previous day, when the plant manager discouraged him from raising a grievance about Frank’s conduct. 

In a decision of the former Employment Appeals Tribunal (EAT), Kenouche v Four Star Pizza[4], the nature of the unreasonableness of the employer is described:

“…the conduct referred to in the Act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee.  Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the resignation by the employee.”

Apart from his preference for resolving issues informally, the plant manager’s reluctance to accept the complainant’s wish to make a formal complaint is difficult to understand.  I have a sense that I did not hear a full explanation of why this happened, and there seems to have been some concern on the part of the manager to shield the complainant from disciplinary action.  While the manager’s failure to examine the report that an employee had behaved aggressively towards the complainant was certainly unreasonable, I find that, based on their long and friendly relationship over many years, this single lapse of managerial responsibility does not meet the test of unreasonableness described in in the Four Star Pizza decision, as “going to the root of the relationship between the employer and the employee.” 

We know that the second limb of the test of reasonableness requires that an employee who argues that they resigned because of the conduct of their employer, must demonstrate that they made every effort, by utilising the internal procedures, to have their grievance addressed.  As an employee of 15 years’ standing, as a member of SIPTU and, as someone who was respected by the managers he worked with, I find that there was no impediment to the complainant bringing his grievance to the HR department.  However, as determined by the Labour Court in Mr O v An Employer (No. 2)[5],

“…in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.  However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal.”

Like the reluctance shown by his manager, it is difficult to understand the complainant’s reluctance to initiate the grievance procedure about the conduct of his colleague.  He eventually put pen to paper in January 2020, but this was after his resignation.  He explained at the hearing that he did not do so before he resigned, because he got the impression from his manager that his own conduct would come under scrutiny or that he would be in some kind of trouble.  I have decided to accept this explanation as reasonable and to find that, of itself, his failure to invoke the grievance procedure does not entirely undermine his case.

Examination of the Case Law

I wish to briefly examine the case law submitted by Mc McGlynn in support of his client’s claim that his dismissal was unfair.

McCarthy v ISS Ireland Limited[6]

Here, Ms McCarthy’s employer was found to have failed to properly investigate her allegation of bullying and harassment and she was awarded damages for personal injuries.  While this precedent is useful, the burden of proof in a complaint of unfair dismissal is not equivalent to that of a plaintiff in an action for damages and Mr Justice Peart made no finding in relation to Ms McCarthy’s decision to resign from her job.

Liz Allen v Independent Newspapers[7]

Although she never raised a grievance against her manager, Ms Allen was considered to have been constructively dismissed.  In this very unique case, Ms Allen was absolved from raising a grievance because the Tribunal concluded that she had nowhere to go with her complaint.  This is not the circumstance in which the complainant in this case found himself.  The respondent company has a HR department and the complainant was on good terms with his managers.  As I have noted above, I place no blame on the complainant for not raising a formal grievance.

Derek Beglan v Scanomat Ireland Limited[8]

Mr Beglan resigned following what were considered to be unreasonable changes to his job which, the Tribunal decided made the employment relationship impossible.  This precedent has no bearing on the case we are considering here. 

G Holland Limited trading as Holland TCS v Laura Dennison[9]

Mr McGlynn said that this claim was concerned with “changing the ground in the employment” and the claimant was found to have been justified in resigning.  Having reviewed this decision of the Labour Court, it is clear that Ms Dennison resigned under severe duress placed on her by her employer, following two very stressful years, during which her role was changed and she was demoted.

Sylwia Schonfeld v Westwood Club Clontarf[10] - Mr McGlynn said that there are similarities between this case and that of the complainant, because problems in the workplace started when an employee joined the company who Ms Schonfled found impossible to work with.  Ms Schonfeld resigned and her dismissal was held to have been unfair.  With respect to the Tribunal, apart from a conclusion that Ms Shonfeld and her manager “rubbed each other up the wrong way,” this determination lacks any rationale for reaching a finding of unfair dismissal.

Findings

In mid-September 2019, when he went out sick, the complainant said that he felt abandoned and unsupported by his managers.  It is my view that this predicament was somewhat remedied at the meeting of October 22nd 2019, when the managers offered the complainant a role in any location that suited him.  At this meeting, with the input of the complainant’s wife, the managers came to understand how badly he was affected by Frank’s conduct which was compounded by their failure to investigate his complaint.  I agree with Mr McGlynn that the complainant should not have been asked to move locations; however, it seems to me that by October, the managers were making a genuine effort to ensure that the complainant felt safe and that he could return to work.  For this reason, I find that the complainant has not shown that his employer repudiated his contract of employment.    

It goes without saying that reasonableness is required of both parties in the employment relationship.  While there was some unreasonableness in the assessment of the plant manager on September 11th that the problem of Frank’s conduct could be sorted out with a handshake, I find that his treatment of the complainant was, on the whole, supportive.  Having considered all the evidence, I find that the respondent’s relationship with the complainant was not tainted with the degree of unreasonableness that is required to support his decision to resign.

The plant manager and the complainant share the responsibility for failing to initiate a formal investigation into the complainant’s concerns about the aggressive behaviour of his colleague.   Ultimately however, it is the responsibility of managers to manage workplace conflict, and the fact that the complainant did not raise a formal grievance did not undermine his entitlement to have his complaints investigated. 

The events following the complainant’s resignation do not, in my view, contribute in any material way to the complainant’s case that he had to resign.  However, I wish to comment on the fact that, in January 2020, he wrote to the HR manager to set out the background to that decision.

When he resigned on December 2nd, the complainant and his representative were invited to a meeting with the HR manager and the operations manager on December 17th.  At that meeting, the HR manager said that she would investigate the conduct that he complained about in September.  On January 15th, he wrote up a detailed note and Mr McGlynn sent this to the HR manager the following day.  On January 23rd, the HR manager wrote to say that she would interview the people named in his complaint and carry out an investigation.  While I accept the upheaval that the Covid-19 pandemic caused in workplaces, it is regrettable that an investigation was not carried out.  Even though the subject of the aggressive behaviour had resigned, the failure to investigate aggression and intimidation runs the risk that the behaviour is considered to be normal and acceptable.  This was the conclusion reached in the Supreme Court decision of Mr Justice Peart, in the case of McCarthy v ISS Ireland Limited (footnote 5). 

Conclusion

In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the chairman, Mr Haugh stated:

“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer.  Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

As the adjudicator of this complaint, my job is to apply that objectivity to the evidence submitted by both sides.  I found this complaint a difficult one to examine, and, despite my enquiries, I am not certain that I was in possession of all the facts that led to the complainant’s resignation.  When he started his new job on December 4th 2019, it would have been reasonable for him to want to commence with his new employer as a “free agent.”  This must have had some bearing on his decision to resign on December 2nd. 

In general, I found that the managers were well disposed to the complainant; it may be the case that their long friendship with him was an impediment to any formal approach to resolving his grievance.  My overall sense is that their intention was to support him to come back to work.  If he had returned, I am satisfied that he would have had the support of his managers to address any conflict that might have arisen between him and his colleague.  In conclusion, having considered the evidence presented to me, I find that the complainant has not discharged the burden of proof which is required to prove that he was unfairly dismissed.

On this basis of the findings and conclusions set out above, I decide that this complaint under the Unfair Dismissals Act is not well founded.

The complainant alleges that, during the last six months of his employment, he worked more than 48 hours a week.  He claims that he worked around 50 hours a week.

At the hearing on November 16th 2021, there wasn’t enough time to hear the evidence of the respondent regarding this working time complaint.  The parties agreed that the HR manager would submit a record to me for examination, of the complainant’s hours of work between January 1st and June 30th 2019.  I received this information on November 18th 2021, showing that the average weekly hours during that period was 45.25.  This document was copied to the complainant’s representative, Mr McGlynn.

As the complainant resigned on December 2nd 2019, this complaint has been submitted after the time limit for which I have jurisdiction to consider a complaint under the Organisation of Working Time Act.  As a reasonable cause for the delay, I have accepted Mr McGlynn’s explanation that his office was closed during the early months of the Covid-19 pandemic.

I have examined the evidence submitted by the respondent and I am satisfied that, in the period from January 1st until June 30th 2019, which was agreed as a sample timeframe for consideration of his complaint that he worked excessive hours, that he did not in fact work more than 48 hours on average, during that period.

I decide that this complaint under the Organisation of Working Time Act 1997 is not well founded.

Constructive dismissal, failure to conduct an investigation, excessive working hours