ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040231
Parties:
| Complainant | Respondent |
Parties | Adam Mitchell McGrath | O'Neill & Brennan recruitment and Site Logistics |
Representatives |
| David Kearney HR Brief |
Complaints:
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-00052443-001 | 06/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00052443-002 | 06/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00052443-007 | 06/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6(1) of the Prevention of Corruption (Amendment) Act 2010 | CA-00052443-009 | 06/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00052443-010 | 06/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00052443-011 | 06/01/2022 |
Date of Adjudication Hearing: 28/03/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint (in circumstances where he tendered his resignation) is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate his employment (as defined in Section 1 of the Unfair Dismissals Act 1997).
It is noted that a party bringing a claim under the Unfair Dismissals legislation must do so within six months of the alleged termination of employment (by his own resignation).
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. This will include using the Grievance procedures or making complaint under the dignity at work policies. I would always have regard for the seminal Employment Appeals Tribunal case of UD 474/1981 Margot Conway -v- Ulster Bank Limited wherein the Tribunal stated:
“The Tribunal considers that the Appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appellant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible.”
Lastly, where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
In addition to a complaint of Unfair Dismissals the Complainant herein has brought a claim under the Employment Equality Acts. In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the Complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral by the said Director General, of this matter to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed). I confirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing (and opened up in the course of the hearing).
The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in her Workplace Relations Complaint Form dated 6th of January 2022) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Family Status (as detailed in Section 6 of the 1998 Act (as amended)).
The Operative Section is Section 6 of the Employment Equality Act 1998 where :-
Sub Section 6 (1) For the purpose of this Act…discrimination shall be taken to occur where… a person is treated less favourably than another person is, has been or would be treated in a comparable situation….
As between any 2 persons, the discriminatory grounds (specified in subsection (2)) include
Section 6 (2) As between any 2 persons the discriminatory grounds .. are…
(c) That one has a family status and the other does not (the “family status ground”)…
Further and in accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by the Complainant of a number of complaints of contravention by the Employer of Acts contained in Schedule 5 of the Workplace Relations Act of 2015 (or such other Act as might be referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing. The Complainant made complaints of contraventions under the following Acts:
Prevention of Corruption (Amendment) Act 2010
European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003
Protection of Employees (Temporary Agency Work) Act, 2012
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The hearing was brought about by the Complainant issuing a workplace relations complaint form on the 6th of January 2022.
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Summary of Complainant’s Case:
The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant did not provide a factual or legal submission in advance of this hearing so that the Respondent and I had to rely on the Workplace Relations Complaint Form which was presented on the 6th of January 2022. The said complaint form purports to nominate up to three potential Respondents/Employers. In the circumstances three separate complaint Files have been generated and all three have been heard together so as to best utilise WRC resources. The Complaints are many and varied and some do not necessarily relate to the difficulties the Complainant says he was experiencing at a grass roots level on the different construction sites wherein he was working. The Complainant alleges that he was Unfairly dismissed. He also says that he was discriminated against. The Complainant says that there were other issues and has raised complaints in accordance with the issues he understood effected his employment. Where I deemed it necessary, I made my own comprehensive inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the statement/narrative but which had not been specifically particularised by this (unrepresented) Complainant. |
Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent representation was provided by Mr David Kearney of HR Brief Limited. Two witnesses presented on behalf of the Respondent. These were Brendan Kelly (Director) and Sean Dunne (HR Manager). The Respondent provided me with a written submission in advance of the hearing and dated the 21st of March 2023. I invited Mr. Kearney to outline his client’s position regarding the details of the employment relationship. The Complainant had two periods of employment with this Respondent. The Respondent herein robustly rejects that there has been any Unfair Dismissal or Constructive Dismissal or Discrimination. The Respondent had no real understanding of the nature of the various other complaints being made against it as the complaint form was not as clear as it might otherwise have been. In the circumstances, I afforded the Complainant some time to articulate his history so that the Respondent could more properly understand the Complainant’s position. Mr. Kearny did seek to cross-examine the Complainant though I am satisfied Mr. Kearney ultimately accepted that it was not necessary in light of the narrative presented by the Complainant. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
I have carefully listened to the Complainant herein who I invited to give his evidence on Affirmation. I explained to the Complainant that the Respondent herein together with two other named Respondents had attended the WRC hearing in good faith despite having little clarity on what case the Complainant was making and how they might best defend their positions. The Complainant outlined his Employment History for the relevant period. He says that he came to work with O’Neill and Brennan Recruitment Agency in and around September of 2017. This is accepted by this Employer. The Complainant was engaged as a General Operative and his services were Sub-Contracted out to Construction sites owned and operated by clients of O’Neill and Brennan. This included the sites under the control of the construction Company known as PJ Hegarty. The Complainant says that he worked at various different sites, and it is common case that the Complainant was a good worker with no disciplinary issues. The Complainant had the requisite training and safe pass and signed his terms and conditions of employment with O’Neill and Brennan on the 6th of September 2017. It is important to note that the Complainant’s Terms of Engagement make reference to the Company Grievance Procedure which was included in the starter pack, and which allows for workplace Grievances to be raised with a line Manager in O’Neill and Brennan. The normal practise is that each time a Complainant went onto a construction site he would be obliged to attend the bespoke on-site Induction course. Such courses usually emphasise Health and Safety issues but also encourage sub-contractors (such as the Complainant) to raise any workplace issues locally with an on-site foreman. I am satisfied therefore that the Complainant knew or ought to have known that if he was being bullied, mocked or harassed by other employees on site, he had recourse to bring this to the attention of both the Employer (O’Neill and Brennan) and the site operator (PJ Hegarty). The Complainant worked for O’Neill and Brennan for three years tendering his resignation in and around the 28th of August 2020. The Complainant says he was not particularly happy when he tendered his resignation but agrees that the Employer would not know that and, in any event, this resignation (and the circumstances surrounding it) pre-date the Workplace Relations Complaint Form by about a year and a half and therefore is not covered, as the Statute imposes at time limit. Had the Complainant felt that the circumstances around this resignation were unfair, he was obliged to bring a complaint on or before the 27th of February 2021. The Complainant form herein issued nearly a year after that in January of 2022. The Complainant indicated that after he left O’Neill and Brennan he submitted his CV to Builders Hoists Limited and, following an interview process, was engaged by them. The Complainant worked with this company for a year from 14th of September 2020 to the 21st of September 2021 (including a period of lay off brought about by a pandemic lockdown). Again, a Contract of Employment was entered into, and I am satisfied that the Contract (showed to me by the Complainant) detailed the steps to be taken in the event that the Employee had a grievance or was being subjected to workplace bullying or harassment. Again, I am advised that the Complainant worked well with this Employer and there were no issues raised within Hoists Limited concerning his employment. The Complainant resigned this employment in and around September 2021 and the Complainant confirmed that he had sent a text message to Ms P (a Director with Hoist Ltd) stating that he was - “..looking for more money… if not I’ll be leaving and you can take this as my notice.” It is therefore understandable that the Employer (Hoist Limited) believed that the Complainant was leaving this employment by reason of a general dissatisfaction with the rates of pay on offer. There is certainly no suggestion that any other issue was raised by the Complainant and the Complainant accepts this to be the case. No Grievance was ever raised with the Employer. This is important as the Complainant’s evidence to the WRC in the course of the hearing, is that prior to this resignation the Complainant says he was being subjected to bullying and harassment on a building site on Merrion Street (wherein Hoist Limited had placed him) in the months and weeks leading up to the resignation. The Merrion Street site in question was being operated and overseen by P.J. Hegarty and Sons (or another large Construction and Development Company not on notice of this matter) and again the Complainant agreed that he would have been given a full induction session when he had been placed into this site. This, I am satisfied, includes a direction that issues or problems encountered in the workplace should be raised with the PJ Hegarty foreman or any other suitable line Manager. Any perceived workplace difficulty could also be raised with Hoist Ltd who were the Employer at this time as set out in the Contract of Employment. As previously stated, the Complainant resigned this position with Hoist Limited in September 2021. The Complainant’s evidence to me and the WRC was that he in fact resigned because he was being bullied, mocked, intimidated and harassed in the workplace. In his complaint form (dated January 2022) the Complainant details a number of incidents concerning interactions he says he had with other persons on site. His evidence is that he was being picked on and that vile things were being said about his family members. I have no difficulty believing that the complainant believed he was being persecuted by one or more persons. The difficulty is that the complainant has not been able to identify who exactly was persecuting him. The names he has provided in the complaint form do not tally with the PJ Hegarty records of persons on site and certainly are not persons employed by Hoist Ltd on that site. The Complainant agreed that he had not made any complaint to either Hoist Limited or PJ Hegarty about how he was being treated when he was working on this site. In fact, the Complainant gave very clear evidence that in September 2021 he went to his Line Manager – the Operations Manager with Hoist Limited (a Mr. Stanley who confirmed the evidence) - and tendered his resignation without providing any explanation or reason. This Employer simply deduced – based on the text message sent to the Director- that the employment was terminated by reason of a general dissatisfaction with the level of pay. This deduction was not unreasonable in all the circumstances. I had sight of this text message and the Complainant agreed that he had sent it. Within a month of this resignation from Hoist Limited, the Complainant was re-engaged as an agency worker back with O’Neill and Brennan with whom he had previously worked. This period of employment started in and around October 2021. On the face of it, I would accept that this would tend to suggest that the Complainant had no particular aversion to this Employer. Three months later in January 2022 the Complainant issued a workplace complaint form against three Respondents – O’Neill and Brennan, Hoist Limited and PJ Hegarty. It is clear from the Complaint Form that the Complainant was unhappy with the three named Respondents, but I also have to accept that the three Respondents had had no sense that the Complainant was unhappy or had had any issues in the course of the employment. In fact, the Complainant was still employed by O’Neill and Brennan at the time that the complaint Form issued and continued to be employed with this said Employer for another eight months after the complaint form issued. The Complainant had not sought advice when he filled out the Complaint Form. It is to be hoped that formal advice should not be required to fill out the WRC form and that the Complainant should be able to fill out a form in line with whatever his complaints are. However, when he and I went through each of Complaints presented, the Complainant agreed that some of the complaints had no bearing on the facts presented at the hearing. The Complainant ticked boxes that simply had no bearing on the facts that he presented to me. For example, the Complainant accepts that he was not in a position to bring a case under the Employment Equality legislation as he could not identify acts of discrimination. The Complainant also agreed that there was no Transfer of Undertaking and complaints brought under this heading are simply not based in law or fact. It should be noted that the Complainant states that his beloved mother was insulted by a person or persons unidentified in the workplace and he took particular exception to this. The Complainant understood the heading “family status” in the complaint formallowed him to vindicate the good name of a family member. This was a misunderstanding on his part. As previously noted, I have no reason to disbelieve that the Complainant was being subjected to treatment that he perceived to be bullying and intimidatory and designed to make him feel uncomfortable in the workplace. However, the Complainant did not bring this to the attention of anyone in authority as and when it was happening. The Complainant did not raise a Grievance or complaint under any of the Dignity at work policies in operation. He denied the Respondents an opportunity to investigate any such behaviour and simply resigned in an uncontroversial way. The Complainant says that he did not understand or know that it was open to him to bring a Grievance or otherwise raise a complaint within the workspace. This may be the case, but I cannot find fault with any of the Respondent parties in this regard. I am satisfied that there were clear and robust procedures operating in the different workplaces to protect an Employee against any untoward treatment. I accept that this Respondent and each of the other Respondents named across the complaint Form, take their Duty of care to protect and vindicate Employees very seriously. The type of treatment which the Complainant has described would simply not be tolerated if it had been found to have occurred.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00052443-001 - The Complainant was employed with this Respondent from 2017 to 2020. As the Complaint form herein is dated January 2022, I do not have jurisdiction to consider the circumstances around a termination of employment which took place more than twelve months before the Complaint Form issued. This complaint fails. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00052443-002 – The Complainant returned to work with this Employer in September or October of 2021 and this employment continued for another eight months after the Workplace Relations Complaint Form issued in January 2022. This complaint is therefore mis-conceived and fails. Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00052443-007 – The Complainant has not made out a Prima facie case of having been discriminated against on the grounds of family status. Complaint seeking adjudication by the Workplace Relations Commission under Section 6(1) of the Prevention of Corruption (Amendment) Act 2010 CA-00052443-009 – The Complainant provided no evidence that he had communicated that an offence under the Prevention of Corruption Act had been committed and that he had subsequently been penalised for making that communication. This Complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00052443-010 – There is no evidence of a Transfer of Undertaking having happened. This complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 CA-00052443-011 – The Complainant (as an agency worker) provided no evidence of having been treated less favourably than an employee regarding access to facilities and amenities at any of the workplaces wherein he was placed. This complaint is not well-founded.
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Dated: 18/04/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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