Complainant

Respondent

Parties

Paul  McNutt

Enercon Windfarm Services Ireland Limited

Representatives

Mr. Michael Kinsey BL, Instructed by  Bruce St. John Blake & Co. Solicitors

Ms. Mairead Crosby, IBEC

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-00036000-001

05/05/2020

The Complainant commenced employment with the Respondent on 25th November 2013. The Complainant was a permanent, full-time member of staff in receipt of an average weekly payment of €645.70. The Complainant’s employment was terminated by way of resignation on 8th November 2019.

On 5th May 2020, the Complainant referred the present complaint to the Commission. Herein he alleged that the conduct of the Respondent was such that he had no option but to terminate his employment and consider himself to be constructively dismissed.  By further submission the Complainant stated that he was treated unfairly by the Respondent in being subjected to an unfair disciplinary process and by the Respondent failing to respect his rights during internal meetings. By response, the Respondent denied the complaint and submitted that the Complainant did not meet the burden of proof required to substantiate a claim for constructive dismissal.

A hearing in relation to this matter was convened and finalised for 29th April 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. The mater was adjourned from a previous day of hearing as a result of technical issues experienced by one of the parties, thereafter no technical issues were experienced by either party.

In advance of the hearing, both parties exchanged submissions. The Complaint called two witnesses in support of his claim; himself and a union representative he engaged with at the relevant time. In defending the complaint, the Respondent called three witnesses: the Managing Director of the Respondent, the Human Resources Manager of the Respondent and a Human Resources Generalist. All both gave evidence under affirmation and were cross examined by the opposing party.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

As the present complaint is one of constructive dismissal, the Complainant accepted the consequent burden of proof imposed by the Act and gave his evidence in advance of the Respondent.

The Complainant was engaged as a field service technician with the Respondent. On 31st July 2018, the Complainant sought to raise a complaint of bullying against his line manager. Shortly after issuing this complaint, the Complainant commenced a two-week period of annual leave. On his return, the Complainant was informed that he was to be the subject of a disciplinary meeting by the line manager that was the subject of his recent complaint. In evidence the Complainant stated that the allegation leading to the disciplinary meeting was without merit and that the process was being invoked in response to his raising legitimate concerns.

The Complainant stated that the disciplinary process adopted by the Respondent was fundamentally flawed and misconceived. In particular, the Complainant stated he was denied any form of professional representation, with the Respondent allowing him to be accompanied by a fellow employee only. In this regard, the Complainant’s request for trade union representation was denied by the Respondent during the process. The Complainant further submitted that the bullying complaint should have been finalised prior to engaging with the disciplinary process, however his concerns in this regard were ignored.

On 3rd September 2018, the formal investigation into the Complainant’s bullying allegation was commenced. The Complainant stated that the Respondent failed to properly investigate this complaint and failed to provide an impartial avenue of appeal to the outcome. Again, the Complainant was denied the right to representation during this process, despite his requesting the same on numerous occasions.

In February 2019, the Complainant was again targeted for an unfair and misconceived disciplinary process. In particular, the Respondent sought to discipline the Complainant for entering allegedly incorrect hours during a training week. At all times, and in direct evidence, the Complainant denied this allegation and stated that this was a long-standing custom and practice in the company. He stated the first training session he attended through to that which was the subject matter of the disciplinary hearing, all employees entered a full day for the final day, even in the event that they finished early. Throughout this disciplinary process, the Complainant was denied the right to professional representation, despite expressly requesting the same on numerous occasions.  

The Complainant suffered an accident at work which resulted in an ongoing absence from work. The Complainant stated that he was pressurised by the Respondent to return to work.

Owing to the failure of the Respondent to afford the Complainant fair procedures, the ongoing mistreatment of the Complainant and following medical advice in relation to the same, the Complainant was forced to resign his employment in November 2019.

In evidence the Complainant stated that the Respondent had targeted him for the last number of years of his employment. He stated that he believed that this was as a result of perceived trade union activity on his behalf. In evidence he stated that throughout all of the processes he was subjected to in the course of his employment he sought to be represented by his trade union representative. He stated that such representation was within his rights, and that the Respondent’s continued denial of the same represented a significant and ongoing breach the same.

In answer to a question, the Complainant denied that he had resigned his employment prematurely. He stated that he had raised a grievance in respect of his difficulties, but that the same did not adequately investigate the issues and was conducted in a manner that was in breach of his rights.

At the outset, the Respondent submitted that the Complainant’s claim was denied in its entirety. In particular, the Respondent submitted that the cessation of the Complainant’s employment did not meet the burden of proof to substantiate a claim for constructive dismissal.

The Complainant commenced employment with the Respondent on 25th November 2013. At all times the Complainant was engaged as a “field service technician”. In evidence, the Human Resources Manager for the Respondent outlined how the Respondent became aware that the Complainant entered incorrect hours regarding a week of training. An investigation meeting in relation to the same was convened for 26th February 2019. On 28th March 2019, the Complainant was informed the allegation of entering fraudulent hours was upheld. In accordance with the Respondent’s internal policies, the Complainant appealed the outcome of this investigation on 9th April 2019. Later that month, the Complainant was advised that the appeal would be held remotely, however the Complainant objected to the same. In the circumstances, the matter was reviewed by the appeals panel in the Complainant’s absence. On 3rd May 2019, the Complainant was informed that the appeals panel had elected to proceed to the disciplinary hearing in relation to the same.

On 13th May 2019, the Complainant was invited to a disciplinary hearing. In advance of the same, the Complainant was informed of the reason for the disciplinary hearing, his right of representation and the potential outcome. On 31st May 2019, the Complainant was issued with the outcome letter. Here, he was informed that he was to be subject to a final written warning, which would remain on his file for a period of twelve months. The Complainant again elected to appeal this outcome in accordance with the Respondent’s internal policies.

On 13th June 2019, the Complainant was involved in a workplace accident that necessitated a period of sick leave. On 12th July, the Complainant was informed that that he would have to attend an occupational health consultation prior to returning to his role. On 6th August, the Complainant queried the same, and queried as to why he required a further meeting with the Respondent in this regard.

On 28th August 2019, the Complainant emailed the Respondent’s payroll co-ordinator, querying as to why he was no paid for a period of four days the previous week. That same date, the Complainant was informed that the days were owed to the company as regards a previous overpayment. By further correspondence, the Complainant outlined his displeasure at this fact and stated that he would not have come to the arrangement to utilise his annual leave in this manner if he knew the Respondent would not actually pay him. On 30th October the Complainant raised a grievance regarding the handling of the his pay during his sick leave.

On 25th October, the Respondent requested that the Complainant attend medical appointment in advance of his proposed return to work on 4th November 2021.  Prior to the same, the Respondent continued the Complainant’s sick leave on foot of a medical report. In or around this time, the Complainant was given comfort that his appeal would be proceeded as efficiently as possible.

On 8th November, the Complainant resigned his position. The Complainant was urged to re-consider his resignation, and was given until 12th November to raise a grievance in this respect. As no re-consideration was received on by this date, the Complainant’s resignation was accepted  by the Respondent and his employment terminated.

In answer to a question, the Managing Director denied that the Complainant’s right of representation was impeded in any manner. He stated that from the outset, the Complainant was entitled to be represented by either a fellow colleague or “company advocate” as per the internal company procedures.

Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows:

“…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 Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘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 as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

In the present case, the Complainant has alleged that an ongoing series of breaches of procedure on the part of the Respondent served to seriously damage the relationship of trust and confidence between the parties. In the alternative, the Respondent has submitted that they acted fairly towards the Complainant at all times, and that he did not meet the burden of proof required to substantiate a claim for constructive dismissal.

One of the primary points of contention between the parties relates to Complainant’s allegation regarding an insufficient right of representation. From the outset, and during every formal meeting, the Complainant requested that he be permitted representation by his trade union representative. In response, the Respondent denied this right of representation, stating that their internal procedures allowed for a right of representation by fellow employee or “company advocate” only.

In this regard, both parties referred to the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000, S. I. 146 of 2000. Specifically, Section 4(3) provides that,

“Good practice entails a number of stages in discipline and grievance handling. These include raising the issue with the immediate manager in the first instance. If not resolved, matters are then progressed through a number of steps involving more senior management, HR/IR staff, employee representation, as appropriate, and referral to a third party, either internal or external, in accordance with any locally agreed arrangements.”

Section 4(4) provides that,

“For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.”

In the matter of Dunnes Stores Tralee -v- Mandate LCR18364, the Labour Court held that,

“It is clear from the Code of Practice as a whole that its object is to provide for good employment practice in the internal processing of grievance and disciplinary issues. To that end it provides that procedures must be fair and in conformity with the principles of natural justice. The right to representation is obligated by the requirements of procedural fairness and is clearly for the benefit of the employee. It follows that it is the employee and not the employer who has the right of election as between the modes of representation provided for by the Code of Practice. A contrary conclusion would not accord with the principles of natural justice nor with accepted standards of objective fairness. Accordingly, it is the opinion of the Court that a refusal to allow an employee representation by a registered trade union in the processing of a disciplinary issue constitutes a breach of the Code of Practice.”

In the matter of Barry McKelvey -v- Irish Rail [2019] IESC 79, the Supreme Court held that,

“When considering whether any process is fair, in the context of representation, the question is not whether a particular type of representation might give some added value but whether its absence can be said to leave the person concerned without an adequate level of representation.”

The Supreme Court went on to say,

“I am not satisfied that there is anything in the evidence in this case which would satisfy a court that representation by an experienced trade union official would not be adequate to secure a fair process.”

In the matter of An Account Specialist -v- An Online Gaming Company, ADJ-00019791, the Adjudicator held that a failure to allow trade union representation rendered a disciplinary process unfair.

In the present case, the Complainant requested representation by a trade union representative during the initial disciplinary process, the bullying investigation and during the second disciplinary process. It should be noted, that each of the processes involved a number of allegations by and against the Complainant. During the second disciplinary process, the Complainant raised a defence of “custom and practice” regarding the alleged wrongdoing. The Respondent’s persistent refusal to permit of right of representation by the Complainant’s trade union representative had the effect of barring the only form of professional representation that the Complainant could availed of in these situations. Having regard to the same, I find that the refusal to allow representation by the Complainant’s trade union representative constituted an ongoing and persistent procedural flaw on the part of the Respondent. No evidence was tendered regarding the Respondent’s consideration of the Complainant’s rights to representation in this particular set of circumstances. In this regard, I note that the complaint raised by the Complainant, and made against the Complainant, were significant and the Respondent’s failure in this regard constitutes unreasonable behaviour.

In the matter of McKenna v Pizza Express Restaurants Ltd [2008] 19 E.L.R. 234, the Employment Appeal Tribunal held that the manner in which a disciplinary process is conducted may give rise to a successful complaint of constructive dismissal. Notwithstanding the same, the appropriate test to be applied is that set out by the Supreme Court in Berber, that iswhether the Respondent “conduct(ed) themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them”. In the present case, the Complainant stated in evidence that he believed that the Respondent had targeted him due to his alleged trade union activities. Whilst I note that the Respondent strenuously denied this allegation, the Respondent repeated refusal to allow for an appropriate right of representation and to deviate from their procedures served to exacerbate the Complainant’s concerns in this regard and led to the ongoing deterioration of the relationship of trust and confidence between employer and employee. In such situations, it would be reasonable for the Respondent to, at a minimum, examine their own procedures in light of the particular nature of the process and the position of the employee. However, from the evidence tendered, it is apparent that the Respondent did not consider the Complainant’s request but simply insisted on maintaining a strict interpretation of their internal procedures at all times.

Having regard to the accumulation of the foregoing points, I find that the Complainant was dismissed within the meaning of Section 1 of the Act, and as a consequence his complaint is well-founded.  

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, I find that compensation is the most appropriate remedy in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard, I note that the Complainant’s evidence that he secured alternative employment shortly after his dismissal, however the same was at lower rate of pay and was not permanent in nature. In evidence, the Complainant outlined that he was obligated to accept this rate of pay he resides in a relatively remote area and has experienced difficulties in securing employment at the rate of pay offered by the Respondent.

Having regard to the Complainant’s efforts to mitigate his losses, I award him the sum of €7,000 in compensation for the breach of the Act.

Constructive Dismissal, Procedures, Right of Representation, Trade Union Representation.