Employee

Employer

Anonymised Parties

An Upholsterer and Carpet Binder

An Interior Design Business

Representatives

Anthony McIntyre, Independent Employees' Union

Barry O’Mahony, BL

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

24/02/2021

The employee is an upholsterer and carpet binder and he commenced working for the employer, a flooring and interiors business, on February 16th 2015.  On June 2nd 2020, during the first lock-down of the Covid-19 pandemic, he was given notice of redundancy.  His employment ended on June 26th. 

This dispute concerns several issues that occurred in the months before the employee was made redundant, when the employee claims that he was harassed and intimidated.  The employer denies the claims.  

October / November 2019:  Changes to Hours of Work and Pay

In a submission provided in advance of the hearing on April 22nd 2022, Mr McIntyre set out some incidents that occurred in late 2019, which, he said, to amount to harassment.  Up to that date, the employee had been permitted to spread his 40 hours commitment over seven days, and to take time off from Monday to Friday to look after his son.  The employee said that other employees were also permitted to work flexible hours, such as an early start and finish time, or a late start and finish, so that they could manage their family commitments.  In November 2019, the MD told the employee that the option of working at weekends was no longer available.  As he had to continue to collect his son from pre-school, the employee was at a loss of some of his wages each week.  The employee normally earned €545 per week and payslips submitted in evidence show that on November 29th, December 6th and December 20th, he earned €436, €469 and €483 respectively.  For three weeks in January 2020, he was also paid less than €545.

At the hearing, the employee explained how, in October 2020, without any consultation, the MD stopped paying him commission, although the payment of commission is set out in a contract of employment he received on October 29th 2019.  He said that a big job came in for €10,000.  He expected to be paid €150 in commission, but he said that the MD told him that he wasn’t getting the commission and that he wasn’t getting it anymore.

February / March 2020:  Incident with the Managing Director’s Brother

In the e-complaint form he submitted to the WRC on February 24th 2021, the employee outlined his concerns about how he was treated by the MD’s brother in the last weeks of his employment.

In February 2020, the MD brought his brother to work in the business, although the employee said that he has no experience of upholstering.  For convenience, I will refer to the MD’s brother as “AB.”  At the hearing of this dispute, the MD said that he brought his brother into the business because he was concerned that one or more of his employees was stealing and he asked his brother to help him to identify who it was.  He said that the employee who is the subject of his dispute was not suspected of stealing.

In the weeks leading up to the March 2020 Covid lock-down, the employee said that AB followed him around the shop, and that this was so obvious that other employees commented on it.  The employee said that he mentioned what was happening to the accountant, who is a cousin of the MD, and she advised him not to say anything to the MD. 

The employee was permitted to leave work every day for an early lunch break to collect his son from pre-school.  He said that nearly every time he left to collect his son, AB asked him where he was going.  The employee said that he explained that he clocked in and out and that there was no need to question him.  He said that AB would come into the upholstery section a few times a day and walk past the other upholsterers and ask him what he was doing.  He said that AB followed him up the stairs to the workshop when he arrived at work and then stood beside his workbench as if he was looking for something. 

In the first week of March 2020, MD was on holidays and the employee arrived at work, clocked in and went upstairs to the workshop.  He was on the ground cutting fabric, and when he stood up, AB was standing at his back.  He said that he felt that he was invading his space and he felt intimidated. He asked AB what he was doing, but he said he just laughed and walked away.

The employee was going on holidays on March 7th and the day before, he said that the minute he arrived at work, AB followed him up the stairs.  As AB had been following him all week, the employee said that he asked the other salesmen to observe what was going on, in case, as he said, he was “over thinking it.”  He had been asked by one of the salesmen to put new legs on a sofa and he went upstairs to the workshop to get a drill.  He said that AB followed him up the stairs.  He followed him back downstairs to the sales area and, as he was about to work on the sofa, the employee said that AB tried to take the drill out of his hand.  The employee said that he asked AB what he was doing, telling him he could manage the job, and AB laughed and walked away.

At 11.30am, the employee went to collect his son as usual and, when he was waiting for his bus, he saw AB standing behind his car peeping at him.  The employee said that he felt intimidated at this, and he took a photo of AB looking at him.  He phoned a colleague and asked him if he noticed AB following him, and the colleague confirmed that he had noticed.

When he arrived back at the job, the employee decided to say something about what he considered to be stalking and intimidation and he clocked in and went to speak with the accountant, who was in charge while the MD was away.  He asked her to have a word with AB, because he said, he couldn’t take it anymore.  While he was talking to the accountant, he saw that MD was standing outside the office window, which is a hatch-type arrangement.  AB opened the hatch and put his head into the office and smiled.  The employee said that he asked him to stop “this bullying” and he asked him if he was he employed by the boss to follow him.  AB told the employee that he was going mad and that it was all in his head and that he didn’t know what he was talking about.   

May / June 2020:  Redundancy

On March 13th, the business closed due to the Covid-19 restrictions.  On May 12th, the MD asked the employee to do a small binding job.  He went into the premises and did the job, which he said, took only 20 minutes.  Two days later, on May 14th, the MD phoned him and told him his job was redundant.  The employee feels that the MD could have told him in person, when he was in office on May 12th.  He said that no procedures were followed in the run-up to the termination of his employment on June 26th.

On June 2nd 2020, the employee said that he arrived at work at 8.40am and clocked in at 9.00am, expecting to receive written notice of his redundancy.  When he asked the MD for the letter, he said that he started to shout at him in front of two other employees, saying he would write the letter now.  He said he shouted at him to get out of the office.  The MD then called the employee back into the office and gave him a letter, confirming his redundancy.  The employee said that he questioned the fact that the letter gave two reasons for his redundancy, and the MD jumped from his chair, took the letter from the employee, scrunched it up and threw it on the ground, screaming at the employee.  When he arrived back after collecting his son from pre-school, the employee said that the MD told him he was 20 minutes late and that he could be sent home.  He reminded the employee that he had left at 12.02, which, the employee said, means that he checked the clocking system.  The employee said that the MD told him he had done no work that day, which, the employee said, was not true.  He said that this treatment is another example of intimidation and harassment. 

Later that afternoon, the MD gave the accountant a new letter of redundancy and demanded that she retrieve the first letter from the employee.  The employee said that he felt he had no option but to give back the first letter.

In a letter to the MD on June 2nd, the employee said that he has been belittled in front of other employees and intimidated to the point of fear.  After all that had happened in the course of one day, he said that he was dreading the next four weeks when he would be working out his notice.  He said,

“So the sole purpose of this letter is to ask you to please stop with these bully tactics and just let me serve my four weeks’ notice and pay everything I am owed on the 26th of June as you have wrote (sic) in your revised letter of notice.  I have always given 100% commitment to your business over the past 6 years and think I deserve a little bit more respect than how I have been treated today.  I am happy to answer any queries or questions you may have about this is a private, professional and dignified manner.”

Before he was due to finish up on June 26th 2020, the MD told the employee that he had no money to pay him his redundancy lump sum.  This situation changed however, and, in the end, the employee he received his statutory entitlement of around €6,500.  From this, he paid his employer €1,000 for a van to set up his own business.  He said that the van didn’t pass the NCT and had to be scrapped.

The employee’s position is that no proper procedure was followed in the run-up to the redundancy of his job.  He said that in addition to upholstery, he is a trained carpet binder, and the employee selected to remain is not a binder.  In his last week at work, he was asked to train that employee on how to do the binding.  After he was made redundant, he was asked to come back into the shop to do binding.  The employee said that he also did the work associated with ordering threads, pricing jobs and dealing with customers.  He said that, although the employer claims that he was closing the upholstery business, he kept one person on to do upholstery, so he has not stopped doing this work. 

Mr McIntyre referred to the letter issued to the employee on June 2nd 2020, as his notice of redundancy.  The letter refers only to the employee’s job as an upholsterer and makes no mention of the binding part of his job.  The employee’s case is that he was unfairly selected for redundancy, and that the employee who remained was not as qualified or experienced as him.

In a submission in advance of the hearing of this matter, the employer’s counsel argued that, at the time he submitted this dispute, the employee was not a “worker” within the meaning of the Industrial Relations Act 1969.  The employer denies that the employee was subjected to bullying and harassment by AB, and that an employer is entitled to supervise and employee.  It is denied that any of the behaviour that the employee complained about was related to the decision to make his job redundant.

At the hearing, the MD said that in October 2019, business was very quiet and that no one was coming into the shop.  He said that, to encourage productivity, commission was meant to be shared between three upholsterers.  He said that the employee’s perspective changed from upholstery to sales.  Between October and December 2019, he said that there were no sales and that this is the reason no commission was paid.  The big job for which the employee expected to be paid commission of €150, was, he said, a job that he, the MD got.  He said that he didn’t pay commission after November 2019 because there was no work.

In response to the complaint about his brother, “AB,” the MD said that said that someone had been stealing from the shop and he took him on to keep an eye on the place for three days a week.  He said that the accountant told him that there had been a confrontation between AB and the employee.

Regarding the decision to make the employee’s job redundant, the MD said that, in the days after the shop closed at the time of the first lock-down, he went into the premises, and he decided to sub-contract the upholstery work.  He decided that he only needed one upholsterer to do small jobs and he selected the person with the longest service.  He said that the employee seemed happy to accept redundancy.

The MD said that he was glad to support the employee with the fact that he looked after his son, and he had no problem with him collecting him from school every day.  He said however, that it became too hard to track his time and he told him he would have to “pull back” on working Saturdays and Sundays.  He said, “the flexibilities didn’t suit us, but we went along with it.”

October / November 2019:  Changes to Hours of Work and Pay

Having listened to both parties setting out their positions on the matters described above, it is apparent that, at the end of 2019, relations between the employee and the MD had deteriorated.  My impression from the MD is that he found it difficult to keep track of the employee, although he introduced a clocking system to monitor his and the other employees’ hours of work.  In November 2019, the MD instructed the employee not to come to work on Saturdays and Sundays, when he made up for hours he took off during the week to take care of his son.  As a result of this instruction, the employee was at a loss of some hours’ pay every week.  Around the same time, the MD decided to cease paying commission of 1.5%, although the contract issued to the employee on October 29th 2019 clearly provides for the payment of commission:

“Commission will be paid over a production figure of €4,500 for the upholstery section as agreed, 7.5% divided by the staff in the section.”

As there were five employees in the section, each was entitled to 1.5% commission on work over the value of €4,500.  The MD said that work dried up in November and December 2019.  No evidence was submitted to support this assertion, and I find it difficult to believe.  It is my experience that the weeks before Christmas is a busy time for the home decorating, carpet and upholstery trade.  As the MD’s business is an acknowledged leader in the Dublin market, I see no reason why he was any less busy that anywhere else.

The employee worked on Saturdays and Sundays to make up for time he took off during the week to collect his son from school.  It is my view that the MD’s decision to stop him from working on Saturdays and Sundays amounts to harassment on the grounds of family status.  I find that this, and the decision to unilaterally stop paying the employee commission, was designed to encourage him to look for a job elsewhere.  The employee said that he went for a “trial” and that he was offered another job, but that he didn’t take it because of the wages offered.  I find that the conduct of the employer was unreasonable and unfair, as his actions were carried out without discussion or notice, and had the effect of reducing the employee’s very moderate weekly pay of €545

February / March 2020:  Incident with the Managing Director’s Brother

In February 2020, the MD said that he brought his brother into the business to attempt to find out if some of his staff were stealing from the company.  From the employee’s version of events, it seems that the MD’s brother, who I have called “AB,” singled him out for specific observation.  While the MD said that the employee was not under suspicion, there must have been some reason for him paying such close attention to him, and this has not been explained.

The Code of Practice for Employers and Employees on the Resolution of Bullying at Work, published by the Workplace Relations Commission and the Health and Safety Authority provides the following definition of bullying:

“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”

Under the heading set out in the guideline is behaviour described as “intrusion, pestering, spying or stalking.” 

The employee complained to a manager about AB’s behaviour, but she advised him not to speak to the MD.  At the hearing, the MD said that he heard there was a row with the employee and AB, but it is apparent that he did nothing to investigate what occurred. 

I can understand how being followed up and down stairs and out to the bus stop must have been unnerving and intimidating for the employee.  As is common with many victims of bullying, he questioned himself about what was going on, and he felt the need to check with his co-workers, who confirmed that he was being closely observed by AB.

I appreciate the fact that the Covid-19 pandemic intervened to bring an end to AB’s bullying behaviour; however, I find that the failure of the MD to, at the very least have a conversation with AB about what occurred and to explain the reason for it to the employee to be unreasonable by most employers’ standards.  No evidence was submitted at the hearing of the existence of a policy on dignity in the workplace, or on the prevention of bullying.  The absence of such a policy, and the failure of the MD or anyone in management to provide guidance to new employees such as AB clearly contributed to his reckless conduct.  

By failing to have in place a policy to prevent bullying and by not carrying out even a cursory enquiry into what occurred in February and March 2020, the MD failed to ensure that his workplace was a safe environment for his employees.

May / June 2020:  Redundancy

The evidence of both parties at the hearing of this dispute is that there were three upholsterers employed in the business, with the employee having the second-longest service.  He was the only one of the three who was trained in carpet binding, having been sent by his employer to Belgium to do a course on a specific binding machine.  Before he finished up, he trained his longest-serving colleague on binding.  At the hearing, the MD said that this person wasn’t good at the binding at the beginning, but that he has mastered it now.

The MD decided to make two upholsterers redundant and he decided that the person with the longest service should remain.  He did not consult with his employees or seek their views about their preferences.  The employee was not given an opportunity to appeal the MD’s decision to select him for redundancy and any effort on the employee’s part to introduce some formality into the process was met with anger. 

After the employee and the person with the shortest service were made redundant, the person with the longest service left, so, it could be assumed that he would have opted for redundancy if it had been offered to him.  (I accept that this person ended up returning to his old job).  I find that the process followed by the MD with regard to the selection of the employee’s job for redundancy was unfair by any reasonable standards and it is my view that he should not have been dismissed.

Conclusion

I have considered the written submissions provided to me in advance of the hearing of these matters, and I have taken account of what both sides said at the hearing itself.  I have concluded that the decision to remove the employee’s permission to work on Saturdays and Sundays was harassment on the grounds of family status.  It is my view that the employee was bullied by the MD’s brother in February and March 2019.  Lastly, I find that the process that led to the redundancy of his job in June 2020 was unfair.

To encourage more professional standards of conduct, I recommend that the employer introduces a grievance procedure and a policy on dignity at work and that managers and employees are trained in its application.  As compensation for harassment and bullying, I recommend that the employer pay the employee €3,270, equivalent to six weeks’ pay.  As compensation for the failure of the employer to following proper procedures when the employee was made redundant, I recommend a payment of €1,090, equivalent to two weeks’ pay.  The total compensation recommended is therefore €4,360.   

Bullying, redundancy process