Complainant

Respondent

Parties

Gary  Marmion

St Michaels House

Representatives

Michael McGuffin N/A

Shona Ryan, Peter Flood, 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-00045839-001

26/08/2021

The Complainant was employed by the Respondent on a 3-year specified purpose contract as a Direct Support Worker from the 27th September 2018 until he resigned his position on 12th May 2021. In this role he was assigned to a residential house, supporting children and young persons. In his complaint form, the Complainant alleged that he had to leave his job due to the conduct of his employer or others at his place of work.  He submitted and Complainant of constructive dismissal and he confirmed that he had the requisite 12-months service to pursue such a case under the Unfair Dismissals Act.

The Respondent is a voluntary organisation, providing a range of services and supports to adults and children with disabilities, and their families in the greater Dublin area. The Respondent disputed the claim in its’ totality and contended that the cessation of employment of the Complainant did not meet the burden of proof to substantiate a claim of constructive dismissal.

The Complainant submitted that he was 8 months into his employment when on the morning of 26th May, having worked overnight on 25th May Mr. RR, Person in Charge (PIC) questioned a colleague about his abilities.  He submitted that the PIC denigrated his abilities and questioned his professionalism directly to a colleague.  He submitted that his probationary period was for 6 months but that his probationary meeting was not carried out until he was 9 months in employment.  He submitted that he had been assured by the PIC many times that he was entirely suited to the position and that the probation was merely a formality.

The Complainant outlined that the probationary meeting took place on 29th May and that at the meeting the PIC commenced criticising him and his personality. He submitted that the PIC mocked him, mentioned his home life and continued with an onslaught of insults and hurtful abuse.  He submitted that he was shaking with the stress and anxiety caused by his behaviour.

He submitted that following the meeting he was constantly stressed and anxious at work and that Mr. R’s behaviour affected his health and wellbeing.  He submitted that he was constantly in a state of stress and anxiety and that his home life was also impacted. He submitted that he resolved to avoid Mr. R at all costs and that this resulted in him taking night shifts and arranging his work schedule in order to avoid Mr. R as much as possible.  He submitted that on 31st August 2019 he suffered an injury at work and that he informed Mr. R, as his manager, the following morning. He submitted that Mr. R agreed to look into the matter on his behalf but that he heard nothing further from him.

He submitted that on 3rd September he went to work and attended a team meeting where he sought to discuss the injury and the incident which gave rise to it.  He submitted that Mr. R shut him down and cut him off in front of his colleagues and he submitted that Mr. R used the meeting to belittle him in front of his colleagues and undermined him further by describing how he would have dealt with the situation.  He submitted that he felt further humiliated when two of his colleagues spoke to him about how Mr. R had intentionally prevented him from contributing to the discussion.

He outlined that he had attended his GP and thereafter had arranged for a debrief with Mr. R.  However, he submitted that this meeting never happened and that the incident and resulting injury were ignored. He submitted that in this regard he was treated differently to his colleagues and that they were aware of this difference in treatment.

He further submitted that on 7th January 2020 he had a disagreement with a colleague and upon his return to work he advised Mr. R of the disagreement in accordance with policy.  He submitted that rather than deal with the matter Mr. R used the situation to humiliate and denigrate him in the eyes of his colleagues and he submitted that he again became anxious and stressed and that he justifiably believed that he was being singled out and isolated by Mr. R.

He submitted that on 7th February at 8.10 am he was again asked by Mr. R to attend a meeting in his office, that once again Mr. R mocked and humiliated him and that the meeting ended with Mr. R slamming the door in his face. He indicated, in his claim form that this was witnessed by a colleague.  He submitted that Mr. R recalled him to his office at 8.50 am where he accused Mr. R of picking on him and humiliating him.  He submitted that Mr. R shouted at him that he might be better off working somewhere else and he submitted that later that same day he used his name in a negative way when talking to two other staff members.

The Complainant submitted that he was then asked to attend a meeting on 19th February.  He submitted that upon the advice of his trade union representative he sent an email to Mr. R on 16th February seeking to ascertain the purpose of the meeting and who would be attending. He advised that he did not receive a written response.  He submitted that on 18th February he received a phone call from Mr. R to say that the meeting was to be informal, “over a cup of tea” to hear his side of the story.

He submitted that on the day the meeting was attend by Mr. R and Mr. JL, and that once again they made the meeting all about his personality and his professionalism and that they sought every opportunity to humiliate and belittle him and his work.  He submitted that he was extremely stressed after the meeting and that he agreed with his wife to seek medical assistance for his stress and anxiety.  He submitted that in the days following the meeting his health took a turn for the works and that he attended his GP on Monday 24th February.  He submitted that his GP placed him on sick leave for a period of 1 month, that he contacted Mr. R to advise him of his sick leave but that Mr. R never enquired as to the reason for his absence.

He submitted that on 25th February he dropped in the medical certificated to the Respondent and spoke with a HR Grievance manager, Mr. OM about his concerns.  He outlined that the meeting with Mr. M lasted more than 90 minutes, where he gave details about his stress and what he described as the constant harassment by Mr. R.  He submitted that Mr. M advised him to attend counselling, that he attended his first appointment with the Counsellor on 4th March and that he attended a further four appointments.

He submitted that he attended the Respondent Occupational health service on 5th March and that the Occupational Health Physician extended his sick leave for a further 6 weeks following initial review.  He submitted that the Occupational Health Physician advised him not to return to work without first checking with her.

The Complainant submitted that on 15th April 2020 he suffered a massive heart attack.  He stated that during his period of recovery Mr. JL wrote to him seeking information with regard to his return to work and offering to relocate him.  He submitted that, in breach of all applicable protocols and guidelines, Mr. L copied Mr. R, whom he described as his “tormentor”.   He submitted that this led him to believe that relocating was not an option to be considered, as Mr. R would, at all times, be aware of his location and could recommence his harassment at will.

The Complainant submitted that his recovery had been long and arduous and that he will be on medication for the rest of his life. He submitted that he correctly believed that he could never work anywhere where Mr. R could involve himself in his future employment and that, in that context, he engaged his representative to seek a severance arrangement. He submitted that the Respondent failed to engage on any terms that reflected his treatment in the workplace and so, he had recently deemed himself to be constructively dismissed on 12th May 2021.

Further Representations on behalf of the Complainant

At hearing the Complainant representative outlined that this was a case of constructive dismissal, but that it was primarily a case of bullying, the detail of which would be provided by the Complainant.  He outlined that Mr. R had a significant role and responsibility as the Complainant’s line manager but also as the Person in Charge in the unit.  He stated that not only did the Complainant meet the tests for a constructive dismissal but that he surpassed those tests. 

He stated that the Respondent had breached the contract of employment by failing to provide the Complainant with a safe and secure place to work, despite the existence of the Respondents Dignity at Work Policy.  He acknowledged that the Complainant must establish that he was entitled to end the contract and he stated that not only did he find himself in an intolerable situation but he was also in an unsafe situation which culminated in him having a heart attack in April 2020.  He stated that not only was it reasonable to terminate his own employment in the circumstances, but that it was prudent to do so.  He stated that the Complainant’s health and the needs of his family dictated the matter.

Complainant – Evidence given under oath

At hearing the Complainant confirmed that his probationary meeting should have been after 6months in post but that it had “gone over” by a couple of months.  He advised that on 25th May 2019, having worked overnight he was finishing up when his manager came in and started grilling him about what had happened.  He stated that the manager kept saying what he would have done in the circumstances.  In response to questions put by his representative he confirmed that he was concerned, that the probationary meeting was scheduled for 29th May and that he approached it with “trepidation”.

He advised that at the meeting with his manager he was “bombarded” with issues around dignity at work, he was told that he was “a hard man” and that his manager made a mocking gesture into his face.  He stated that his manager commented on his personal life and said “you have a tough time at home.” He confirmed that he was doing a lot of nights, that he preferred to after what had happened while on nights and he confirmed that he sought to work nights on a permanent basis.  He advised that several colleagues told him that the manager was going around before the probationary meeting asking about him.

The Respondent representative interjected that this was hearsay and should not be considered.

The Complainant described how he had been locked in a room and that this had been raised at the staff meeting by a colleague.  He stated that the discussion was immediately shut down by Mr. R.  He stated that after he returned from sick leave this incident was never mentioned again.  He confirmed that he did not make an issue of all that had happened at the time, that he wasn’t happy but that he had a family to feed.

The Complainant described the incident in relation to one of his colleagues as follows:  he stated that there were three staff on the shift and he described himself as a “clean freak”.  He stated that he wasn’t happy with how she had cleaned something and that he had said to her “you’re all right I’ll clean that later on.”  He said that the next day she said he was bullying her.  He said that after the incident he phoned Mr. R to alert him to what had happened but that Mr. R said to him that he was only telling him because “now you’re in trouble.”  He said that the issue was never dealt with by Mr. R.

The Complainant outlined that ¾ months earlier a colleague had given a service user something her shouldn’t have given.  He stated that the tablet was given by another staff member and that he knew nothing about it.  He stated that Mr. R had said to him that he was longer in the role and that he should have seen this occurrence.  He stated that at the meeting Mr. R referred back to that incident and shouted at him that he would “sort him out”; he stated that Mr. R said JL and I will sort you out” and that he said “it’s all about you.”  He confirmed that although it was meant to be an informal discussion there were raised voices and that he had said “I’d be better off elsewhere”, to which Mr. R responded “whatever you think yourself.”

The Complainant confirmed that upon the advice of his trade union representative he sent an email to Mr. R, in advance of the meeting scheduled for 19th February seeking clarity on the purpose of the meeting and details of attendees.  He confirmed that he did not receive a reply but that Mr. R phoned him at night on 18th February to confirm that Mr JL and himself would be present and that it was an informal meeting to “sort things out over a cuppa”.

The Complainant advised that when he arrived Mr. R said to him that he should “leave his personality at the door”.  He stated that the meeting was discuss the concerns raised by his female colleague about the cleaning comment but he stated that the focus was on his personality.  He confirmed that after the meeting in January he felt isolated and picked on by Mr. R and that he was becoming very stressed about issues.  He stated that his wife advised him to see a doctor due to his stress levels and that he was placed on sick leave for 1 month.

The Complainant confirmed that he phoned Mr. R to inform him about the sick leave and that Mr. R said he would sort out the sick leave and revert but that he never did. He confirmed that he met with Mr. M, that he was dropping in the medical certificate and that he went in on the “off chance” of seeing him.  He confirmed that he spent about 90 minutes with Mr. M outlining all his issues of concern relating to Mr. R.   He stated that Mr. M recommended counselling and that he did attend 4 counselling sessions and that it was felt that 4 sessions would be sufficient to allow him to return and address issues.

He also confirmed that he attended the occupational health services at the Respondent request and that they extended his sick leave by a further 6 weeks although he had explained that he wanted to get back to work.

He acknowledged that the Respondent had addressed his pay entitlements relating to his sick leave and stated that he was grateful that this had been done.  He advised that at the approach to the end of that period of sick leave he had discussed the issues again with the occupational Health Physician and that they both agreed that he was now strong enough to discuss his grievances with Mr. M.  He stated that Mr. M advised him that he had to have a back to work meeting with Mr. R and that he had advised that this was not acceptable to him.  He stated that Mr. M told him that there would be other staff on shift and that he should leave the door open.  He stated that Mr. M said he had to have a face-to-face meeting with Mr. R despite the fact that he expressed his anxiety at this course of action.  He advised that Mr. M stated “that’s the way it is, that’s the practice”.  He stated that this was the only course open to him, despite the fact that Mr. R was his “tormentor.”

Cross examination of the Complainant

It was put to the Complainant that he had not behaved reasonably in resigning his position because his manager had been copied on an email.  In response the Complainant stated that when he realised that Mr. R was party to arrangements no could no longer engage in the process.  He stated that the issues he had experienced with Mr. R had caused him significant stress and had had a major impact on his health.  He stated that once he realised that Mr. R was “at the wheel” he felt he couldn’t access the process, that he had no trust in the procedure.  The Complainant further stated that HR had apologised to him and accepted that it was not good practice to have copied “the perpetrator”.  He stated that copying Mr. R was, for him, the “straw that broke the camel’s back.”

The Complainant stated that he had followed all the advice/direction given to him at the outset by Mr. M, that he had attended the occupational health services for all appointments and that he had attended counselling.  He also confirmed that he had provided medical certification and kept his employer informed of his absences.  He stated that he had provided consultant documentation in relation to his critical illness as required by policy and that in his opinion there were elements of the case that could have been better handled by the Respondent.  He stated that he considered Mr. R to be “dangerous” to his health and that he firmly believed that he was in the background.  In such circumstances, he stated he could have no confidence in the process.

In response to questions put by the Respondent representative the Complainant confirmed that he had passed his probation and that he had signed the probationary form which indicated that he and Mr. R had a good working relationship.  It was put to the Complainant that he wouldn’t sign such a statement if he had concerns.  The Complainant responded that he needed his job.  It was also put to the Complainant that he had given a very different account of the probationary meeting than that which he had signed off on the probationary form.  He stated that it had been a very difficult meeting, that Mr. R had him crying, that he felt “belittled and undermined”.  He stated that no staff member would write that down and he stated that in the context that he was being bullied he felt that the only safe thing to do was to sign the document.

In response to further questions the Complainant confirmed that he had left matters as long as he could, hoping that things would improve but that ultimately, he went to Mr. M.  It was put to him that he had raised a grievance and had then gone out sick and he advised that he had acted on the medical advice from his GP initially and that this was confirmed and extended by the Respondents’ own medical services.  In response to a question from the Respondent representative as to why he had not waited until he was fit to raise his grievance, the Complainant responded that he went to Mr. M because he wanted the “weight off his shoulders”.

The Respondent representative asked the Complainant if he had engaged to facilitate a return to work and he confirmed that he had not once he received the email that was copied to Mr. R.  he was asked if he had raised any concern regarding that email and the Complainant confirmed that he had not but that he had raised sufficient concerns in relation to Mr. R beforehand.  He stated that he had had enough and that he realised that his “tormentor” was still part of the process.

The Complainant confirmed that following his resignation he continued his on-going efforts to recuperate.  He confirmed that his former employer contacted him and offered him a job when he learned that he was out of work.  He further confirmed that there he had put the Respondent on notice of his resignation in his letter of resignation and that there were “tentative settlement talks” between the Respondent and his representative.  He also confirmed that he did not formally respond to Ms. C’s letter, that he did not engage in a back to work interview and that he did not return to work with the Respondent.  He stated that he wanted no more to do with Mr. R.

Evidence given by Ms. CM (wife of Complainant) under oath

Ms. M confirmed that the Complainant began to get very stressed, that his anxiety was clearly visible.  She stated that he was not sleeping and that ultimately, he had a heart attack.  She confirmed that she phoned Mr. M the day after the Complainant had the heart attack to advise him of the situation and that on foot of that call, she received a call from Mr. R.  She stated that Mr. R had promised to clarify and sort all kinds of things relating to the sick leave and to get back to her but that he never called back or made any contact.  She stated that all the other colleagues made contact to check how the Complainant was doing, that was everybody with the exception of Mr. R.

Closing Submission

The Complainant representative stated that the Complainant had clearly surpassed the tests to demonstrate that the Respondent had not acted reasonably as they had not provided a safe and secure place to work.  He further stated that the Complainant had been left with no option but to resign.  He stated that it was a matter of regret that the offer to relocate had been copied to Mr. R and that the Respondent had continually included Mr. R in stages of the process where the Complainant felt he could not safely progress his complaints.  He stated that in all these circumstances it was not just reasonable of the Complainant to resign but was prudent, in light of his family responsibilities.  He stated that it seemed to him that it was reasonable of the Complainant to expect that the bullying would continue.

The Respondent submitted that on 7th January 2020, a colleague of the Complainant raised an informal grievance against the Complainant which she did not wish to pursue formally and that the issue was addressed by Mr. RR and Mr. JL with the Complainant through informal conversations as “a means to dilute the situation.”

The Respondent submitted the following sequence of events to have occurred:

·        On 25th February 2020, the Complainant went into Mr. Oms’, (Employee Relations Manager) office to hand in a medical certificate stating that the Complainant was unfit for work from 23rd February for 4 weeks. The Complainant the discussed his workplace concerns regarding the manner in which Mr. R and Mr. L dealt with the informal grievance against the Complainant. In accordance with the Dignity at Work policy Mr. M and the Complainant discussed an informal approach to resolve the issue in the first instance.

·        On 5th March, the Complainant was reviewed by the occupational Health service where it was noted that the Complainant was suffering from stress and anxiety due to interpersonal difficulties with Mr. R and Mr. L.  The Complainant was deemed unfit for work and unfit to engage with the Respondent in relation to work-related concerns.

·        On 30th March the Complainant was reviewed by the Occupational Health Service who reported that the Complainant “can facilitate a return to work by 20th April 2020. Around this time the country went into lockdown due to the pandemic.

·        On 14th April 2020, a medical certificate was provided by the Complainant stating that he was unfit for work from 24th February until 19th April 2020.

·        On 20th April 2020, a medical certificate was provided by the Complainant stating that he was unfit for work until 29th April 2020.

·        On 21st April 2020, a medical certificate was provided by the Complainant stating that he was unfit for work until 2nd June 2020.

·        On 11th May 2020, a letter was received from a Consultant Cardiologist informing the Respondent of the Complainants’ recent heart attack. The Consultant stated that there was a positive family history of heart disease in the Complainants’ family.

·        On 21st May 2020, the Complainant was advised that there would be a reduction to his sick leave payment in line with the sick leave policy as he had been absent for 93 days.  The policy outlined that staff receive full pay up to 92 days sick leave in a 12-month period, half pay for sick leave of between 93 and 183 days and no pay for sick leave in excess of 183 in a 12-month period.

·        On 25th May 2020, a medical certificate was provided by the Complainant was provided by the Complainant stating that he was unfit for work until 29th June 2020.

·        On 10th June 2020, the Complainant lodged a formal complaint relating to alleged bullying by Mr. R.  In addition, the Complainant alleged that his injuries were due to the organisations failure to provide payments under the “critical illness protocols”. He stated that he was not in a position to address the issues as matters stood at that time.

·        On 24th June 2020, Mr. M acknowledged receipt of the formal complaint and reassured the Complainant that as he was medical unfit to pursue the complaint, the letter would remain on file until the Complainant was medically fit to engage. Mr. M received no response to that correspondence.

·        On 26th June 2020, a medical certificate was provided by the Complainant stating that he was unfit for work until 25th July 2020.

·        On 6th July 2020, the Occupational Health Service confirmed that the Complainant should be cocooning instead of being placed on “critical illness”.  This was a “better” entitlement as it was a protected payment for individuals who were at high risk of Covid infection. On 7th July, the Complainant was notified that his illness warranted cocooning during the Covid-19 period and he was advised that sick leave deductions would be corrected and backdated to 29th March as a matter of urgency. The Complainant received payment for all periods of sick leave in line with the sick leave policy, including his full salary for the time he was cocooning.

·        On 9th February, the Respondent received a report stating that the Complainant no longer met the criteria for cocooning.  The Complainant wished to discuss with his treating specialist about his return to work during his next appointment in April 2021 and he wished to receive the vaccination before returning which the Respondent facilitated.

·        On 2nd March2021, the Complainant submitted a medical certificate from his GP stating that he was unfit for work from 10th march to 6th April 2021.

·        On 23rd April 2021, the Respondent received a further report from the Occupation health Service stating that the Complainant was fit to return to work and fit to engage with the grievance. The report also stated that the Complainant expressed a preference for an alternative work location. The Complainant did not return to work.

·        On 28th April 2021, Mr. L emailed the Complainant an “internal mover form” to fill out in order to facilitate his request for a relocation. The Respondent received no response to this.

·        On 12th May 2021, the Complainant formally submitted his resignation stating that the Respondent had failed to address his issues and requested that all correspondence be directed to his legal representatives.  The resignation was submitted before any formal grievance could have been exhausted. The Respondent was not given an opportunity to investigate the allegations because the Complainant resigned prematurely.

·        On 20th May 2021, Ms. EC (HR Manager) wrote to the Complainant’s legal representative cc’ing the Complainant informing them that she had just returned from sick leave herself. She encouraged the Complainant to retract his resignation by requesting to carry out a return-to-work interview. She advised that she intended to formally re-engage with the Complainant that week in relation to his grievance under the Dignity at Work Policy and she requested that the Complainant provide details including dates and witnesses of the alleged behaviour.  She outlined that such information was required in writing in order to initiate a preliminary investigation as outlined in the Dignity at Work policy.  Ms. C advised that when these details were provided, she would prioritise the preliminary screening and that the outcome would be communicated to the Complainant within 7 working days.  She highlighted the Respondent’s commitment to ensuring the Complainant’s safety, health and welfare at work and the Respondent’s commitment to providing supports necessary to facilitate this.

·        On 3rd June 2021, the Respondent received a report from the Occupational Health service stating that the Complainant had submitted his resignation and had been discharged from the medical practitioner’s care.  The report also highlighted how the Complainant had secured employment elsewhere.  In addition, on 27th June 2021, the Complainant emailed the Respondent’s pension point of contact and advised them that he had secured a new job.

The Law

The Respondent referenced the definition of dismissal as set out in Section 1(b) of the Unfair Dismissals Act and submitted that in light of that definition and established principles there exists a burden of proof on the employee to demonstrate that:

(a)The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

(b)The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

The Respondent submitted that it is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment.  The Respondent submitted that neither criterion had been met.

The Contract Test

The Respondent submitted that, at all times, they acted within the terms of the contract of employment between the parties and that no contractual violation occurred.  The Respondent drew attention to the case of Conway v Ulster Bank UD 474/1981 where the Respondent did not violate any term of the contract or the organisations policies and where it was found that the Respondent’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the Respondent no longer intended to be bound by the contract”.  No change occurred in the contract to make it “so radically different from what it was before.”

The Respondent submitted that the Complainant was paid sick leave pay entitlements at all times in accordance with the sick leave policy.  The Respondent acknowledged that clerical errors were made on their part in moving the Complainant to half pay but that once it came to attention that the Complainant was eligible for cocooning, payment was immediately rectified and backdate. The Respondent pointed out that during the relevant time period Phase 1 of the Government’s Covid-19 re-opening plan commenced and the Respondent was under severe pressure to facilitate a re-opening plan and to ensure Covid-19 compliance.

The Respondent submitted that the Complainant, in order to justify his decision to terminate his employment, would have to demonstrate that the circumstances of his dismissal me the tests set out by Lord Denning, MR in Western Excavating [ECC] v Sharp (1978), where he stated thus:

“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 Respondent submitted that the Complainant failed to operate within the terms of the contract of employment by failing to comply with the sick leave policy.  He was deemed fit to return to work on 23rd April 2021, however, he never returned to work nor provided a sick certificate and remained on uncertified sick leave until his resignation date.  The Respondent further submitted that they always fulfilled their contractual obligations, whether implied or otherwise.  In this context the Respondent submitted that the termination of employment fails on a contractual test to be a constructive dismissal.

The Reasonableness Test

The Respondent submitted that there are two interwoven factors to be considered in this regard:

       I.          Did the employer act unreasonably so as to render the relationship intolerable, and

      II.          Did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures.

The Respondent submitted that they acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct.  The Respondent submitted that Mr. M and the Complainant spoke during an unscheduled conversation on 25th February 2020 to discuss his concerns with Mr. L and Mr. R.  The Respondent further submitted that the Dignity at Work Policy states that “the employee may approach the alleged perpetrator directly and make the person aware that the behaviour in question is unwelcome…an informal discussion is often sufficient to alert the person concerned to the effect of his/her behaviour.” The Respondent continued that the policy also states that “he/she may approach the alleged perpetrator directly or request the intervention of an appropriate supervisor.”  The Respondent submitted that in accordance with the policy Mr. M discussed with the Complainant of an informal approach to resolve the issue and the Complainant was made aware of the Employee Assistance Programme.  The Complainant provided a medical certificate deeming him unfit for work for a period of 4 weeks at that time.  The Respondent also received an occupational Health report confirming that the Complainant was unfit for work, but also unfit to engage on his work-related concerns.  The Respondent submitted that the Complainant never returned to work from 23rd February 2020 onwards.

The Respondent submitted that they consistently engaged and followed the advice of the medical practitioner and the Complainants GP, and only engaged with the Complainant when deemed fit.  Given the serious nature of the Complainant’s medical illness, the Respondent submitted that it was their priority to ensure the Complainants’ medical fitness and that they did not wish to exacerbate the illness by proceeding with an investigation into workplace issues whilst the Complainant was recovering on sick leave.  The Respondent noted that the Complainant made no objection to this.

The Respondent submitted that they had a comprehensive grievance procedure in place through which all grievances are fully and fairly processed in accordance with the Code of Practice set out in SI 146 of 2000.  The Respondent further submitted that when the Complainant raised a formal grievance and stated that he was not in a position, both mentally and physically to address those matters, the Respondent respected his space and acknowledged receipt of the grievance and informed the Complainant that the grievance would remain on file and be investigated once he was fit to address these matters.  The Respondent noted that no response was received to that correspondence, now was any objection raised.

In their submission the Respondent outlined that on 23rd April they received an occupational health report confirming that the Complainant was fit to engage in the grievance and outlining his request for an alternative work location.  The Respondent submitted that arrangements were made for the Complainant to be relocated as per his request. And relevant application form was emailed to him for completion.  The Respondent noted that the Complainant had acknowledged in his complaint form that he had disregarded this form entirely. The Respondent submitted that they were in the process of arranging to meet with the Complainant in relation to his grievance but that within 13 days of being deemed fit to engage in a process he resigned, failing to give the Respondent the opportunity to even arrange a meeting to investigate the grievance.

The Respondent outlined that upon receiving the resignation Ms. C responded to the Complainant and suggested that he retract his resignation by offering to carry out a return-to-work interview and explore an alternative work location.  She outlined the Respondent commitment to ensuring the Complainant’s safety, health and welfare in returning to work.  She also sought details of the alleged bullying so that a preliminary screening could be carried out in accordance with the policy and she stated that this would be prioritised once the requisite information was received.  The Respondent submitted that the Complainant did not provide those details.

The Respondent submitted that by virtue of this the Respondent acted reasonably at all times following the advice of the Respondent’s medical practitioner and the Complainant’s own GP.  The Complainant simply failed to give the Respondent the opportunity to address the issues once he was deemed fit to engage.

In relation to the question as to whether or not the employee had acted reasonably the Respondent pointed to the case of McCormack v Dunnes Stores, UD 1421/2008 where the Tribunal stated “the notion places a high burden of proof on the employee to demonstrate that he/she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve the grievance with his/her employers.  The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”  The Respondent also noted the case of Grzybek v Keelings Retail [UD462/2011] where the EAT held that “an employee must exhaust all avenues for dealing with his grievance before resigning.”

 “The Claimant did not provide sufficient and adequate evidence that the Respondent dismissed him even in a constructive fashion.  The claimant did not act reasonably in resigning. The Tribunal accepts that he was suffering some stress in the workplace …but this was not sufficient reason for the claimant to resign.”

The Respondent submitted that on 23rd April 2021 the Respondent received confirmation that the Complainant was fit to engage in a process to address his grievances and that he was seeking an alternative work location.  The Respondent issued him with the application form for transfer and he refused to complete the form.  The Respondent submitted that it had been fully explained to the Complainant that his complaint would be dealt with once he was fit to engage, yet 3 days after he was deemed fit, he submitted his resignation.  The Respondent submitted that by resigning, the Complainant gave the Respondent no chance to implement next steps, acting in an impulsive and unreasonable manner.

Response to allegations made on the complaint form

The Respondent provided a response to a number of allegations set out in the complaint form as follows:

·        Meetings on 26th and 29th May where the Complainant alleged that Mr. R criticized his personality, abilities and professionalism.  The Respondent refuted these allegations and submitted that these were informal conversations with the Complainant in relation to inappropriate comments made towards a colleague and that at no point did the Complainant raise any concerns regarding his treatment at that time.

·        Probation Meeting – The Respondent submitted that the notes of the probation meeting clearly reflect normal constructive criticism from a manager during a performance review and that at no point did the Complainant raise any concerns regarding his treatment at that time.  The Respondent cited examples of same and also reference the final probationary review meeting on 5th June 2019, where it was stated that “[the Complainant] and his PIC [Mr. R] have a good working relationship.”  The Respondent noted that this record was signed by both Mr. R and the Complainant and that the Complainant passed his probation.

·        Allegation that the Complainant moved to night shifts to avoid Mr. R – The Respondent submitted that the Complainant requested to do night shifts in March 2019 (first alleged bullying was 26th May 2019 as per claim form) and submitted that the Complainant’s reasoning to do night shifts was because it suited his home life.  The Respondent submitted that the rosters reflect that the Complainant worked night shifts in March and April 2019 prior to the first incident of alleged bullying.

·        Allegations relating to a team meeting on 3rd September – The Respondent submitted that the Complainant was on sick leave on 3rd September 2019 and that minutes of the meeting reflect that the team meeting took place on 4th September, minutes which demonstrate that no such conversations took place., and that the conversations focused on work-related and operational matters only.

·        Allegation that injury at work was ignored – The Respondent refuted this allegation and highlighted that the Complainant was moved to an injury scheme in line with sick pay policy where he was remunerated in accordance with that scheme for any resulting absences and protecting his sick leave entitlements. The Respondent advised that the Complainant was reviewed by the occupational health service who noted that he was “otherwise happy and content in his job.”

·        Allegation relating to meetings of 7th and 19th February with Mr. R and Mr. L – The Respondent submitted that the Complainant had provided no proof to support his allegations.  The Respondent advised that a colleague of the Complainant had raised a grievance against the Complainant but did not wish to pursue the matter formally.  In those circumstances informal conversations took place as a means to dilute the situation.  The Respondent further noted that the Complainant had stated that he was asked to “attend a meeting in [Mr. R’s] his office”, however, the Respondent pointed out that Mr. R did not have an office.

·        Allegation that relocation was not an option as Mr. R was copied on the email – The Respondent submitted that Mr. R was the Complainant’s line manager and keeping the line manager “in the loop” is normal procedure, both procedurally and practically. The Respondent’s stated position was that this was an entirely unreasonable and irrational reason to disregard such efforts of the Respondent to satisfy the Complainant’s request.  In addition, the Respondent submitted that the Complainant did not raise any issues with Mr. R being copied in the email which could have been rectified if such complaints had been communicated.

·        Meeting with Mr. M – The Respondent acknowledged that the Complainant had spoken to Mr. M but that this was an unscheduled conversation relating to his concerns.  The Respondent outlined that Mr. M had advised how the issues could be resolved informally, in the first instance in line with policy.  The Respondent confirmed that Mr. R had provided the Complainant with details of the EAP services but noted that on the same day the Complainant provided the Respondent with a sick certificate for 4 weeks.

In conclusion, the Respondent requested that the Adjudication officer reject the claim, in its’ entirety.

Further representations on behalf of the Respondent

At hearing the Respondent representative stated that the Complainant had failed to utilise the internal procedures to address his concerns, that the Complainant had not met the requirements of the contractual test nor the reasonableness test. He stated that a mere 13 days after the Complainant had been deemed fit to participate in a process to address his grievances he had resigned. 

He stated that the Respondent had requested that the Complainant retract his resignation and provide further details of his bullying allegation but that he had not done so.  He advised that the Complainant had been asked to complete the form for an internal transfer but that he had refused to complete the form.  He stated that the Complainant had not acted fairly to the employer and had not put the employer on notice of his intention to resign.

The Respondent representative pointed out that the Complainant had stated that he did not complete the transfer form as Mr. R had been copied on the email.  He stated that resigning after an email had been copied to the manager was an extreme response and that this was merely a practical step, that the manager needed to know where his staff were.

Ms. B evidence given under oath

Ms. B stated that she had heard a lot of information at today’s hearing and that it was a matter of regret that the Respondent had been unable to engage for such a lengthy period due to the Complainant’s ill health.  She stated that the Respondent always followed the procedure as set down in their policies and that any grievances were considered to be allegations until they were proven.  She stated that when the Complainant was deemed fit to engage the HR Department was willing and waiting to resolve any issues, recognising that there are 2 sides to every story.

She stated that the Respondent would have engaged with the Complainant and Mr. R to try to resolve matters and would have supported both parties.

Cross examination of Ms. B

It was put to Ms. B that there were elements of this case that could have been better managed and she advised that she hadn’t had an opportunity to discuss the matter with Mr. M as he was out of the country but she was aware that the Complainant did not want to deal with Mr. R.  she stated that she believed that Mr. M followed the policy and procedure.

Mr. R evidence given under oath

Mr. R confirmed his role as Social Care Lead and that he was just over 5 years in that role.  He confirmed that he was the Complainant’s line manager and that he managed 15 full time staff.  He advised that he was tasked with setting up a residential service for children with autism, that the unit had opened initially in 2018 with 5 staff but that resident numbers and staff numbers had increased on a phased basis since then.  He confirmed that the had never had any complaints before the current case.

He advised that when he came on shift, he met the Complainant in the utility room.  He stated that the Complainant had approximately an hour left to go on his shift and that he was working with and supporting 2 young men and 1 female client.  He advised that at handover the Complainant made a comment about the young female and that when he made the comment Mr. R told him that it was inappropriate and unprofessional of him. He stated that there was one other member of staff present. 

He stated that he then met with the Complainant on 29th May, that he did not have an office so they met in the sitting room.  He stated that the Complainant apologised and got upset.  He stated that the Complainant advised him that he had stresses outside of work and they left the meeting on an amicable basis.  He confirmed that the Complainant did not raise any concerns in relation to the way he spoke to him.

Mr. R confirmed that the Complainant’s probationary meeting was scheduled for the following week, that there were no issues and that the Complainant had passed his probation.  He advised that they had discussed the positives and that he had provided constructive feedback, and that overall, it had been a positive meeting.

In relation to 31st August incident, he stated that from memory this occurred on a Saturday, not a Sunday as described by the Complainant.  He stated that there was a challenging behaviour incident.  He stated that this was not infrequent with the particular client group and that he had empathised with the Complainant at the time.  He stated that the Complainant then worked the Sunday shift and thereafter went out sick. 

He stated that following the Complainant’s return from sick leave a team meeting took place on 4th September and that there were no concerns raised. He confirmed that the minutes of that meeting were completed by another member of the team and reflected his account of that meeting.

He advised that on the morning of 7th January the Complainant and a female colleague had been working the night shift and that the female colleague advised that she felt aggrieved.  He stated that she had said that the Complainant was criticising her.  he stated that she was clear that she was not making a formal complaint but that she was just bring the matter to attention in case it happened again.  He stated that 3 days later the Complainant contacted him by text message asking to talk to him.  He advised that he rang back and that the Complainant told him about the issue with his female colleague.  He advised that he suggested they would meet in person to discuss the matter rather than deal with it by phone.

He confirmed that he drove in to meet with the Complainant that he felt they had a positive conversation.  He confirmed that he heard the Complainant’s side of the story, that he explained his motive was to try to dilute the situation, that he explained to the Complainant that the colleague had been clear she did not wish to make a formal complaint and he acknowledged that the work can be challenging.  He confirmed that the Complainant did not raise any concern with him at the time in relation to their interaction.

Mr. R advised that there was no formal meeting on 7th February, that when he came on shift circa 8 am that he had a conversation with the Complainant in the sleepover room.  He stated that he considered that the matter had been closed but that the Complainant was aggrieved that the staff member had approached him with her grievance.  He advised that he suggest that the Complainant, himself and Mr. L would meet the next time they were all on a day shift and sit down and have a chat over a cuppa.  He confirmed that he absolutely did not slam the door.

Mr. R confirmed that on 19th February Mr. L called to the unit and that they went upstairs, together with the Complainant.  He stated that they did not talk about the incident but that he had stated that with 10 staff disagreements happen.  He stated that it was a short meeting and that he could see that the Complainant was frustrated.  He stated that it culminated with the Complainant making 2 points and that he then stood up, waved his fingers, picked up a chai, slammed it down and then walked out.  He stated that the Complainant then was on self-certified sick leave for the next 2 shifts.

He confirmed that on 23rd February the Complainant advised that he was on sick leave for a month.  He confirmed that he did not ask why he was sick as he felt this would have been inappropriate and he confirmed that at no time during the meeting on 19th February had the Complainant raised any objection in relation to his treatment at the meeting.

Mr. R stated that the Complainant had been to HR and so he was aware that he was off for a month.  He stated that in mid-April there was an issue in relation to the May roster and that he emailed the Complainant to advise him that the roster was out and that when he returned, they would hold a back to work meeting.  He stated that he then heard from the Complainant’s wife that the Complainant had a heart attack.  He stated that this was very upsetting news and that he empathised with Ms. M in the circumstances.

Cross examination of Mr. R

It was put to Mr. R that his evidence was mostly lies, that the relationship between him and the Complainant was not the cosy relationship he described.  The Complainant representative asked Mr. R if he saw the staff as his staff or as staff of the Respondent organisation.  Mr. R did not respond.

The Complainant representative asked about the number of Complainants made by colleagues of the Complainant about him and how many of those colleagues had left the Respondent employ.  Mr. R did not respond.  When pressed for an answer Mr. R stated that it wasn’t relevant to the instant case. 

It was put to Mr. R that it spoke volumes that he had not made any contact with the Complainant to check how he was doing following his heart attack to check on his recovery and Mr. R responded that the last time he had seen the Complainant he had slammed the chair down.  He stated that in that context he felt it best to wait for the Complainant to contact him.  It was further put to Mr. R that he could have contacted the Complainant’s wife and that he had, in fact, given an undertaking to do so and had failed to follow through on that undertaking.  Mr. R stated that he didn’t phone Ms. M back as the matter was “in the realm of HR”.

He advised that the Complainant had asked him to put him on the night roster and that this was because it would best suit his home life.  He confirmed that he advised the Complainant that he would do his best but that he couldn’t guarantee the arrangement.  He stated that from march the Complainant had worked mainly nights.

Closing submission

The Respondent acknowledged that they had a duty of care to investigate complaints such as those outlined by the Complainant, that they were at all times willing to undertake such an investigation, providing a fair process to all parties.  The Respondent submitted that they never got the opportunity to initiate that investigation in accordance with their policy in the first instance due to the Complainant being deemed medically unfit to participate in the process.  The Respondent that once the Complainant was deemed fit to participate it was necessary to be furnished with the specifics of his complaints but that before they could commence the process the Complainant resigned just 13 days after being deemed fit to engage in the process.

The Respondent acknowledged that the Complainant had indeed gone through a difficult time in relation to his health issue but stated that it was untrue to attribute this solely to the Respondent and the Respondent pointed to the Consultant letter which referenced a family history of cardiac issues.

Finally, the Respondent submitted that the Complainant had not discharged the burden of proof required to meet either the contract test or the reasonableness test and stated that the Complainant had merely posed allegations with no supporting evidence.

I noted the content of submissions and supporting documentation provided and I noted the oral evidence given by both parties and witnesses at the hearing.  I paid particular attention to the medical certificates and the Occupational Health reports, as these assisted greatly with the chronology of events and with understanding the Complainants’ capacity at given times to participate in processes to address his issues.  I did not take into account any instances where hearsay information was presented.

It is clear from case law that there are two distinct tests for constructive dismissal, and they are known as the ‘contract’ test and the “reasonableness test”. (Ref Western Excavating (ECC) Ltd v Sharp IRLR 27 and Conway v Ulster Bank UD474/1981).  Both require the employee to discharge the burden of proof, but they are separate tests.

In a claim of constructive dismissal, the Adjudication Officer must determine if the employee has met either test. While an employee may be able to satisfy both tests, they are not required to meet both tests and there is no combined test of repudiation and reasonableness.

Contract Test

Western Excavating (ECC) Ltd v Sharp summarised the contract test as: “If an 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 other performance.”

Reasonableness Test

Western Excavating (ECC) Ltd v Sharp also stated that the reasonableness test provides that the conduct of the employer should be assessed and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”  The reasonableness requires an assessment of the employer’s conduct and the extent to which the employee sought to utilise the procedures and raise their concerns.

Application of the legal tests to this case:

This case relates specifically to circumstances which occurred relating to grievances expressed by the Complainant in relation to his treatment by his line manager, his absence due to sick leave which he largely attributes to those issues and his ultimate resignation in circumstances which he described as no longer tolerable.  The question that arises here is whether or not the Complainant was constructively dismissed either by repudiation of his contract or if it was reasonable for him to resign. It should be noted that while the Complainant outlined his concerns about his treatment by his line manager, that is not the case for consideration, and I have made no findings in that regard.

I noted that stress in the workplace is a recognised occupational hazard under the Safety, Health and Welfare at Work Act, 2005 and in accordance with those statutory provisions ought to be dealt with through a risk management process and utilising the principles of prevention.  The Health & Safety at Work Act sets out the underpinning of health and safety principles, and the duties of both parties under the Act are key to this case.

In considering evidence given at hearing, together with written submissions and appendices I have formed the view that the Complainant was suffering with a great deal of anxiety associated with his relationship with his line manager.  I also formed the view, that he did invoke the Respondent procedures under their Dignity at Work Policy when he addressed his concerns with Mr. M in February 2020 and in accordance with that policy I considered this to be the first stage of the procedure which provides for an informal approach in the first instance.  It is also clear to me from both parties’ submissions that the Respondent was on notice of the issues of concern and was well aware of the Complainant’s health issues and his level of stress and anxiety, and other ill health issues, particularly in circumstances where he was hospitalised for cardiac procedure. 

I considered the following events to be both relevant and noteworthy to this matter:

·        That, in February 2020, the Complainant met with Mr. M, who was a senior member of the HR Team, and outlined his issues in relation to his relationship with Mr. R (this is not in dispute)

·        That he attended the Respondent Occupational Health service and the EAP services at the behest and on the advice of Mr. M and co-operated fully with advice given and with the terms of the sick leave policy

·        That in the report of the Occupational health service date 5th March 2020 the Respondent Physician confirmed that the Complainant was suffering from “progressive stress and anxiety and determined that the Complainant was not medical fit to engage with the organisation at that time in relation to his work-related concerns.

·        That in the same report the Physician documented that the Complainant had provided a comprehensive account of his work-related challenges over the last number of months and that he had highlighted these informally to HR

·        That on 30th March 2020 a further Occupational health report confirmed that the Complainant had an additional stressor as an informal complaint had been made against him by a colleague.  However, the report also confirmed that the Complainant was “now fit to engage to open the dialogue to address his work-related concerns and to facilitate a return to work by 20th April 2020.  This report was addressed to Mr. M.

·        That the Complainant continued to provide medical certificates for his absences and there was no evidence of an attempt by the respondent to put in place a process to address the Complainants concerns.  Rather, it is clear from the evidence that Mr. M required the Complainant to attend a return-to-work interview with Mr. R, in circumstances where there was no proposal on how his concerns would be addressed.

·        It is clear that the Complainant raised his concern, in this regard with Mr. M, but was advised that this was the only course open to him, in accordance with policy.

·        That in mid-April, prior to the proposed return to work date of 20th April, the Complainant suffered a cardiac incident, requiring hospitalisation and surgery. That arrangements were made to advise the respondent of those circumstances

·        Tat on 11th May the Complainant’s treating Consultant wrote to the Respondent advising them of the Complainant’s medical issues. In that correspondence the Consultant pointed to the family history of heart disease but also to smoking and “plenty of work-related stress” as contributing factors.

·        That on 10th June 2020 the Complainant notified the Respondent of his intention to pursue a formal complaint of bullying and harassment against Mr. R and a complaint of a “systemic failure” of the Respondent to provide him with a safe working environment.”

·        In that same letter he advised that he considered the injuries suffered by him to be as “a direct consequence” of his experiences in the workplace and that those injuries were being “exacerbated by the failure of the organisation” to advise him or assist him with those matters.

·        In that correspondence the Complainant also referred to the respondent pay arrangements for his sick leave as a further contributing factor, however this matter was address by the respondent in follow up correspondence and it was accepted by the Complainant at hearing, that this had been an error and that payments had been rectified.

·        That Mr. M responded to the Complainant on 24th June addressing the pay issue and advising that his complaint would be retained on file until the Complainant was fit to engage.

·        I noted that there was no further engagement between the parties, other than in relation to matters of pay, from 7th July 2020 until he attended the Occupational health service on 9th February 2021, and I noted that the report of the Physician on that date confirmed that the Complainant had advised that he had been suffering from work related stress.  The Physician also expressed the view that the Complainant was fit to return to work but acknowledged that he wished to discuss this with his treating consultant at his next appointment in April 2021.

·        That an Occupational health report dated 23rd April deemed the Complainant fit for work and fit to engage in relation to his submitted grievance dating back to February 2020 and that the report also referenced an expressed preference by the Complainant for an alternative work location.

·        That on 28th April 2021 Mr. L emailed the Complainant and attaching an internal transfer form to be completed by the Complainant.  This email was copied to Mr. R.

·        That there was no further interaction between the parties up to 12th May 2021 when the Complainant submitted his resignation

·        That on 20th May 2021 Ms. C, HR Manager wrote to the Complainant’s legal representative expressing regret at the email that issued on 28th April 2021, advising that she had been absent on sick leave at the time and outlining that it had been her intention to

o   Re-engage with the Complainant the week of 20th May to support him in his return to work and to progress the allegations set out in his letter dated 10th June 2020.

o   Outline the requirements for the Complainant to set out the specifics of his complaint and the preliminary screening process that would be undertaken

o   Offer the Complainant a return-to-work interview with her which would include a discussion on his preferences for relocation

·        In that letter Ms. C also advised that the Complainant would not be required to provide a CV for the purpose of the transfer

·        That no response was made to that letter by either the Complainant or his representative.

Having considered the evidence I find that the Complainant was entitled to consider himself to have been constructively dismissed on the following basis:

·        The Complainant had clearly put the respondent on notice of his concerns in relation to alleged bullying and harassment of him by his line manager when he met with Mr. M on 25th February 2020.  This was in the form of informally raising his issues and, in accordance with the policy could have been addressed by either an intervention of an appropriate supervisor/manager or by mediation. 

·        The Complainant attended the occupational health service on 5th March 2020 where he again outlined his grievance and where the Physician reported back to Mr. R he had given a “comprehensive” account of his grievances, that he was suffering from “progressive stress and anxiety” and that he was unfit to engage on these matters at that time.  It seems to me there are two significant elements to this report: (i) that the Complainant was unfit to engage and (ii) that it again put the respondent on notice of the Complainant’s grievances and of his work-related stress issues.

·        The occupational health Physician notified Mr. M on 30th march that the Complainant was fit to engage in relation to his grievances and fit to return to work in the near future, subject to discussion with his treating consultant.  There was no evidence that, consequent to receipt of this report, any actions were taken by the respondent to address the Complainant’s grievances.  Rather, what is apparent is that discussions took place in relation to the Complainant’s return to work, and that a pre-requisite of that return was that he undertake a back to work interview with Mr. R.

·        It is worthy of noting that this requirement was placed on the Complainant, in the context of a documented diagnosis from the Complaint’s GP of stress and anxiety, supported by the assessment of the respondent medical services.

·        It is also worth noting that just 5 days before the Complainant was due to return to work and in the context of his objections to having a return-to-work interview with his line manager he suffered a heart attack and was hospitalised.

·        It is clear from the Consultant Cardiologist correspondence that “plenty of work-related stress” was one factor in him having a heart attack.

·        That in early June 2020 the Complainant put the Respondent on notice of his intention to pursue a formal complaint of bullying and harassment against Mr. R and that he notified the respondent that he considered their failure to address his issues to have exacerbated his ill health issues. I noted that he also advised that he was not fit to engage in a process at that time.

·        I noted that while Mr. M responded to that letter he advised that he would keep the letter of complaint on file until the Complainant was fit to participate.

·        I consider it worth noting that, based on the evidence provided by the respondent, the only medical advice requested at the time related to payments under the “Critical Illness Protocol” and no advice was sought in relation to the Complainant fitness to engage.

·        Based on documents provided with the respondent submission and on the evidence of the parties at hearing there was no further contact between the parties from July 2020 to 23rd April 2021.

·        I noted that the Occupational health report of 23rd April deemed the Complainant fit to return to work and fit to engage in relation to his grievances and that it further highlighted the Complainant’s wish to transfer.  I noted that Mr. L, a senior manager with the Respondent sent out the requisite form for completion to the Complainant, asking that he submit a curriculum vitae in addition to the completed form and that he copied this correspondence to Mr. R.  I noted that this was expressed by the Complainant as he considered that Mr. R “was at the wheel” and would have an involvement in his future regardless of any further transfer location.

·        I noted that the Complainant did not respond to that correspondence, and I noted that the Respondent did not make any contact with the Complainant in relation to a process to address his grievances in the period between 23rd April 2021 and the date of the Complainant’s resignation on 15th May 2021.

I noted that the Complainant’s contract of employment makes reference to the Safety, Health & Welfare at Work Act, 2005 and indeed, even if it did not, the duties imposed on both the employer and the employee under the Act would be considered to be an implied term of the contract.

There is clear evidence, supported by three different medical practitioners that the Complainant was suffering from work related stress and anxiety.  It is clear that the Complainant’s stress and anxiety was increasing over time and there is also clear documentation, provided by the Respondent showing that, in the view of the Consultant Cardiologist, “plenty of work related stress” was one of the factors which contributed to the Complainant’s heart attack.  In reviewing this case in its’ entirety I was struck by instances of good practice in relation to the handling of the matter but I was also struck by many instances where mismanagement was evident.  I acknowledge the efforts of the respondent in providing EAP and Occupational Health support, in providing a comprehensive sick leave policy including pay entitlements and I acknowledge that when an error in that regard, was brought to attention it was quickly rectified.

However, I noted that there were interventions that could not be considered best practice and were, most definitely unhelpful in addressing concerns.  In particular, and in the context that the Complainant had raised significant concerns in relation to his interactions with Mr. R I consider that it was unreasonable to expect the Complainant to return to work with Mr. R as line manager without a process to address matters being in place.  It was also unreasonable to expect the Complainant to engage in a back to work, one to one interview with Mr. R as he returned to the workplace after his first protracted absence.

There was a clear absence of support from Mr. R during and after the period of the Complainant’s hospitalisation, and if that was considered to be inappropriate, then contact should have been made by another senior officer of the respondent.  This did not happen.

While I accept that the respondent could not have progressed the establishment of an investigation into the Complainant’s formal complaint in 2020 I noted that there was no medical evidence confirming that he was not fit to engage, rather this was his own stated opinion.  Occupational health advice should have been sought at that time.  It was of greater concern to me that there was no engagement between the Respondent and the Complainant for a prolonged period from July 2020 to the end of April 2021 and this would certainly have served to undermine the working relationship between the Complainant and the Respondent organisation.

While I noted the correspondence from the HR Manager on 20th May and while it strikes an appropriate conciliatory tone, it cannot be dismissed that this letter issued almost one month after the Complainant was deemed fit to engage in relation to his grievances.  In the intervening time no proposals were forthcoming from the respondent to suggest that his grievances were to be addressed.

Taking all of the above into account I find that the failure of the Respondent to respond adequately to the grievances and the significant work-related health issues of the Complainant in the specific circumstances where those grievances related to his immediate line manger amounts to repudiation of contract.  I consider this to be the case in circumstances where the Respondent failed to keep in contact with the Complainant throughout protracted periods of sick leave and continually required the Complainant to engage in one-to-one meetings with their line manager in order to achieve a return to work.

I also find that the Complainant met the “reasonableness test” for constructive dismissal.  He very clearly articulated his grievances, both verbally and in writing to a Senior HR Manager and to their Occupational health provider. Once he was deemed fit to engage there was a period of almost one month when there was a clear obligation on the respondent to set out the process for addressing those issue and the respondent failed to do so, leaving him with no real alternative but to resign.

Redress

In respect of redress, I noted that the Complainant had secured alternative employment by June 2021.

The Complainant was not in employment from 12th May 2021 until 24th June 2021 and the resultant loss of income amounts to the sum of €5,985.06.  In that context I find that she is entitled to compensation of €5,985.06

I decide that the Complainant was unfairly dismissed by the respondent and the Respondent shall pay the Complainant redress of €5,985.06 as compensation for the unfair dismissal.

Constructive dismissal