Complainant

Respondent

Parties

Raymond  Wood

Cleveland Cable Company (Ireland)

Representatives

MP Guinness BL Philip Lee

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-00043824-001

30/04/2021

The Complainant worked as a Warehouse Operative with the company from 2nd September 2019 until 20th April 2021.

The Complainant was forced to resign from his employment due to his treatment by the company. He resigned on 20th April 2021.

His problems began when he had to take eight days off from 26th February 2021 to 6th March 2021 to mind his children as his daughter was in hospital. He was issued with a final written warning when he returned to work on 12th March 2021, and also given a warning dated 3rd February 2021. He was not able to appeal the warning from February as the time to do this had already expired by the time it was received.

He was notified of a disciplinary meeting on 15th March 2021. He asked for the disciplinary procedures three times from his Supervisor, but the Supervisor told him he did not have to give them. The Complainant had to attend a disciplinary meeting on 15th March 2021 without the procedures and was given a final written warning. His daughter had a serious infection so he missed eleven days. He asked that this absence be put down for emergency or parental leave but this was refused. After the meeting, he wanted to appeal the outcome and spoke to the HR manager in the UK. He was given the procedures and the Employee Handbook. He met the Branch Manager for the appeal, and he overturned the final written warning on 24th March 2021.

The Complainant says from the date his appeal was successful he was bullied and harassed, and treated differently to other staff. For example, on 8th April 2021, he was in an accident but was not allowed go home in the afternoon and was told to wait until 5pm. He complained to the Branch Manager but nothing was done. He had to provide for his family so stayed working. He was being bullied and harassed since he appealed the warning and approached at least four times a day. Subsequently, an incident took place relating to the cable cutting machine he was working on. The speed was turned up to the maximum by the supervisor without telling him. He saw the Supervisor in the office twice on the same day, but the Supervisor never told him what he did. The machine jumped when he turned it on, this was very dangerous. He used the same speed on the machine all of the time he worked there. None of his colleagues were treated in this way.

He wrote all of this down and gave a summary to the Branch Manager on 19th April 2021.The Manager seemed to agree it was dangerous but said he did not get injured. He had complained before about his Supervisor to the Manager. The Manager never came back to the Complainant with an update on this. On 20th April 2021, he was followed to the toilet by a manager. He found this intimidating. He was told to use a broken toilet with a basin of water used by all staff to wash his hands. He had no option but to resign. The company and others tried to intimidate him into leaving.

He started a job in another company, but it was a night shift so he couldn’t keep it up. He has not worked for six months and is starting a new job next week.

The Respondent says the Complainant must prove he resigned due to the conduct of the company and others. The burden of proving the Complainant was constructively dismissed lies on him.

The Respondent says the Complainant was given a contract of employment in 2019. He had excessive absences from work. On 1st February 2021 he was notified of a disciplinary meeting on 3rd February 2021 which he attended. He was informed he had been absent for ten and a half days since September 2021 for a variety of family and other reasons. It was the worst absence record of any member of staff. He was given a written warning in relation to poor conduct and his absence levels. There was a right of appeal but did not appeal.

On 19th February 2021, management had an informal meeting with the Complainant in relation to his poor attendance.

The Complainant was invited to a disciplinary meeting on 11th March 2021 regarding his poor conduct relating to his absence levels. He had six and a half further days of absence since the disciplinary hearing in February 2021. The Complainant said he had not received the disciplinary procedure. This is available on the company intranet.

The Complainant was given a final written warning as he missed twenty-seven days in the past twelve months. The Complainant said he would not accept this as he had four children at home and if something happens to them, he might need to go home to look after them. The Complainant was notified of his right of appeal. He contacted the UK HR Manager and told him he had not received a copy of the employee handbook. He was told by Citizens advice he should have received a copy of the disciplinary procedures before the meeting.

The appeal took place on 22 March 2021 and the Complainant explained he had to take time off due to his wife’s pregnancy, mother’s serious illness, his daughter was admitted to hospital, and sons ongoing condition which meant he was in hospital every two months. He said when he started to look for his rights, he was refused the employee handbook on three occasions and is now getting warnings. The Complainant said he notified the company that he wanted to use up holidays for some of the absences but heard nothing. The absences were all warranted.

On 24th March 2021, the Complainant’s final written warning was overturned and reduced to a written warning. However, he was notified his attendance record was extremely poor and if he had any further absences in the next six months the disciplinary process would recommence.

The feedback from the Complainant’s supervisor was that his cut count was down and attitude very poor following the appeal. He was encouraged to get through more work by his Supervisor.

On 12th April 2021 the Complainant went to the Manager and complained that his Supervisor was asking him to get through more cuts when he was getting through as many as he could. He objected to being moved from the machine he was on as he was used to it. The Manager told him all staff are moved around the warehouse depending on the work. His Supervisor changed the speed on the machine he was working on to 7 or 8, he was never told this. The Complainant said this was very dangerous and could have caused an accident. The Manager said he would speak to the Supervisor.

The Supervisor said he couldn’t find the Complainant to tell him about the change to the machine. He put the speed up as the Complainant was working too slowly. There was no malice in this. The Complainant was told the Supervisor should have told him about the change to the speed of the machine. He was told he should have checked the speed of the machine before starting work as this is the standard operating procedure.

On 15th April 2021 the men’s toilets in the warehouse were blocked, they were fixed the following day. On 16th April 2021 staff were told the toilets were fixed. On 19th April 2021, the staff were told to use the appropriate toilets for their pod and not to use those upstairs. On 20th April 2021 the Complainant was told by his Supervisor not to use the toilets upstairs due to Covid-19. The Complainant said he didn’t know the other ones were fixed. He resigned that afternoon.

The Complainant handed in his notice and worked part of his notice. He did not make complaints about his treatment leading to his resignation.

The Respondent says the dismissal is in dispute and the Complainant has not met the standard for constructive dismissal under S1 of the Unfair Dismissals Act 1973-2015 that either there was a repudiatory breach of his contract of employment or the conduct of the employer was so untenable he had to resign. They say the Complainant has not acted reasonably, and is obliged to do so to allow the employer to resolve his grievance. He did not use the grievance procedure or bullying and harassment procedure, and was only in the workplace for three weeks following his complaint. The Respondent relies on Conway v Ulster Bank Limited UDA474/1981 and Beattie v Bayside Supermarkets UD 142/1987.

I have heard and considered the evidence of the parties and their submissions.

The Complainant’s claim is for unfair dismissal under S 6 of the Unfair Dismissals Act 1977-2015 and that he has been constructively dismissed under Section 1 of the Act. The Act defines “dismissal” in relation to an employee as:

“ 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”.

In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Complainant was provided with a contract of employment on 2nd April 2019 which refers to the company’s disciplinary, bullying and harassment and grievance policies contained in the Employee Handbook. Following a number of requests, the Employee Handbook was provided to the Complainant in March 2021.

The Complainant gave evidence at the hearing that he was getting on well in work until he had to take time off for his daughter’s illness when she was admitted to hospital in March 2021. His Supervisor changed at the same time. He was worried and anxious due to the disciplinary proceedings as all time he took off was genuine. The first warning was given to him in writing too late for him to appeal. He successfully appealed a final written warning on 24th March 2021, as he was not given the disciplinary procedure in advance despite request. He says as a result he was treated differently to colleagues by his Supervisor and others. He was changed from machine one which he worked on since he joined the company, and moved to another room to do another job. He was then moved to other machines and sent to the goods area with colleagues who did not speak English. He was the only person that was being moved around. He said he was being harassed by his Supervisor and others. This only happened since his appeal. He was followed into the toilet by one of the Managers and to use other ones which were broken and in poor condition. The Complainant provided photos of a sign saying the toilets were closed, and their poor condition on 16th April 2021.

The Complainant does not accept his Supervisor forgot to tell him about changing the speed on his machine on 12th April 2021, as he saw him twice in the office, and never warned him. The Complainant did not agree his attitude was poor and cut count down. He says he was not pulled up on these issues. He was asked to increase his speed on the machine. This had not happened before, and no one uses 10 speed unless it is a small cable. The Supervisor has never carried out this work. The Complainant agrees he had twenty-seven absences due to urgent family issues as his new baby was sick.

The company witnesses dispute the Complainant’s evidence and say staff are moved around regularly. The disciplinary policy is available on the company intranet. The toilets were fixed. Some staff used toilets upstairs and some downstairs due to Covid-19 restrictions. The Complainant was told to use the toilets downstairs. The manager said the Complainant was a good worker. The managers said they knew the Complainant’s work was down and a performance meeting was logged. The Supervisor gave evidence the Complainant was going deliberately slowly with his work, and he had targets to meet. He forgot to tell the Complainant about the change to the speed of the machine. The standard operating procedure requires the machine operator to check the speed prior to use. There were 3 Supervisors for the area and there was no change to the Complainant’s Supervisor.

There is a direct conflict in the evidence given by the parties.

Stage 1 of the company grievance procedure provides a complaint can be reported informally to the individual’s direct manager or another manager. If the issue is not resolved, a written grievance should be submitted at stage 2. The Complainant complained on two occasions about his treatment by his Supervisor and the incident with the machine to the Branch Manager. He was seriously concerned about the speed on the machine being altered. He got a fright, and said to the Branch Manager it was dangerous and could have caused an accident. The Branch Manager said the Complainant complained about what happened with the machine and his Supervisor should have told him about this. The Complainant said the Branch Manager said he would get back to him on this but never did. There was no follow up from management with any response to the Complainant’s complaints, nor did they provide the Complainant with the grievance procedure or direct him to the bullying and harassment procedure so he was aware how to progress his complaints.

The Complainant says no issue was ever raised regarding his performance. His Supervisor was asking him to increase his speed, but there was no negative feedback.  No record of drop in output or decline in performance against targets was provided at the hearing. This was never raised formally with the Complainant, who was not in a performance improvement process.

SI 674/2020 Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the prevention and Resolution of Bullying at Work) Order 2020 which covers allegations of bullying by employees including intrusion and less favourable treatment than colleagues in similar roles, was enacted on 5th January 2021. Employers are required to act reasonably, assess a complaint, record actions and put in place a suitable response based on each case arising. The failure of the employer to comply with a Code of Practice can be taken into account by an Adjudication Officer.

The Complainant made complaints about his treatment from March 2021 to the Branch Manager on two occasions. I find it was reasonable for the Complainant to resign given the unfair disciplinary process which was rectified, and subsequent complaints to the Manager about his treatment which were never responded to nor investigated in accordance with SI 674/2020 Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the prevention and Resolution of Bullying at Work) Order 2020.

However, the time period between the Complainant’s complaints and resignation on 20th April 2021, is short. The Complainant could have made greater efforts to follow up on the complaints with management and exhaust the grievance procedure in accordance with Conway v Ulster Bank Limited UDA 474/81 and has thereby contributed to his dismissal.

In all the circumstances, compensation is the appropriate form of redress for the Complainant who has been out of work for 20 weeks. Taking into account his contribution, it is just and equitable to award 12 weeks wages at €502.00 gross per week to the Complainant total €6,024.00 as compensation for unfair dismissal and I direct payment of this by the Respondent.

I find the Complainants resignation was justified and that he was unfairly dismissed. It is just and equitable to award 12 weeks wages at €502.00 gross per week to the Complainant total €6,024.00 as compensation for unfair dismissal and I direct payment of this by the Respondent.

Constructive dismissal, bullying and harassment, exhausting grievance procedure