Complainant

Respondent

Parties

Colman  Curran

Magna International Autolaunch Ireland Limited

Representatives

Alan Crann BL, instructed by Melissa Wynn of  Sean Ormond & Co.

Robin McKenna of IBEC.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00047300-001

23/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00047300-002

23/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00047300-003

23/11/2021

The issues in contention concern the alleged Constructive Dismissal of a Production Operative by a Car Components Manufacturing Company with related Payment of Wages and Employment Equality Complaints.

The Employment commenced on the 22nd of January 2018 and ended on the 24th of September 2021.

The rate of pay was €575 per week Gross for a 39-hour week.

The Complainant gave a lengthy Oral Testimony supported by an extensive Written Submission. The chief Spokesperson was Mr Alan Crann BL. Full cross examination of all Respondent witness took place.

1:1        CA-00047300-001 (Equality Act,1998), CA-00047300-002 (Payment of Wages Act, 1991) and CA-00047300-003 (Unfair Dismissals Act ,1977)

The essence of the Complainant’s case was that following a serious, unprovoked altercation with another Employee (Mr X) he was denied his proper sick pay entitlements, was discriminated against on the grounds of his Disability, not given Reasonable Accommodation for same and all things considered, was left with no option but to give in his notice due to the appalling behaviour of the Employer.

As all three complaints were presented together with joint evidence it is necessary to relay the summary in the same fashion.

1:2       Background details and Evidence given.

On the 25th of June 2021, while at his normal work, the Complainant alleged that he had been seriously physically assaulted by a colleague, Worker X. He suffered bruising & broken nose arising from the assault. He had to be assisted home and was medically certified as unfit by his own GP until the 26th July 2021 when the Company OH Advisor certified him as Unfit for a further six weeks.

On the 6th July 2021 the Complainant contacted the HR Department regarding his payments while out sick. He had a clear expectation that all his expenses would be paid for, and he would remain on full pay while absent. This had been the case in earlier Occupational Injuries he had suffered. HR, Ms M, replied to him on the 7th July informing him that expenses would not be paid and that he would be expected to avail of the normal Employee sick pay scheme -50% of normal pay. This was extremely distressing to the Complainant as he was absent due to no fault of his own.  This formed the basis of his Payment of Wages complaint.

Regarding the incident of the 25th June 2021 the Respondent employer purported to carry out an investigation. While initially unwell and unable to attend in person he gave a written statement on the 6th July 2021. He was interviewed as part of the investigation on the 9th August 2021 and later on the 6th September 2021. Major issues arose during the Investigation regarding the CCTV footage available and the statements of purported witnesses. The Respondent position on the CCTV was constantly changing and the GDPR regulations were either being deliberately misunderstood or being used to obstruct the process.

It was clear to the Complainant and his supporting colleague, Mr H, that the tone of the Investigation being carried out by the Respondent was hostile to him and was seeking to apportion significant blame for the incident to him. He was an innocent party who had been seriously wronged and should not have to counter allegations that both parties i.e., Mr X and himself were almost equally to blame, the loose expression being that “There was a pair of then in it”. The minutes of the meeting of the 9th August and the comments from the chief investigator, Mr D, had been most upsetting regarding a “Fight being gross misconduct”.  A fight involves two parties, but the Complainant had been the victim of an unwarranted assault from Mr X. Mr D had clearly taken on board Mr X’s comments that it was a two-way incident thereby rendering him a completely biased investigator. There were serious issues with the proper interviewing of the other witnesses. On all these grounds the Investigation was flawed.

By the date of his resignation the Complainant had not received the outcome from the Process.

During this time issues also arose regarding the Complainant’s Social Welfare forms – the HR Department had dragged their feet, with the proper completion of these, resulting in the Complainant, a family man, being severely financially distressed. The attitude of the Respondent was obstructive and most unhelpful. This was, in the main, the basis of the Reasonable Accommodation Equality complaint.

In August the Complainant had contacted the Company, a large Muti national, “Hotline” regarding regarding the Sick pay issues and the handling of the entire Assault situation. This did not prove very satisfactory as the Hotline Representative Ms HB had reiterated Company Policy regarding Sick Pay. On receipt of SW payments, the Company would “top up his pay” to 50% of normal pay and not the 100% he felt entitled to based on previous Occupational Injury related absences. The Hotline was closed by Ms HB on the 9th September 2021.

At this stage and taking all the above evidence in the round the Complainant’s trust and confidence in the Respondent was completely evaporated and he was left with no, option but to resign which he did on the 10th of September 2021.

The Complainant gave an extensive Oral Testimony on all of the above and was comprehensively cross examined by Mr McKenna for the Respondent. The Oral evidence given was clear cut and consistent.

The Respondent made a written submission supported by extensive Oral Testimony from Ms M of the HR Dept and Mr D from the Production Dept. Chief spokesperson was Mr McKenna from IBEC.

The Respondent evidence was across all three complaints.

2:1       CA: 00047300-001 (Equality Act,1998)

The Complainant was involved in a violent altercation with another employee on the 25th June. He was on Sick Leave following this incident and remained so until the date of his resignation. The Respondent was at a loss to know how he could have been discriminated against during this absence.

It is necessary, in the first instance, to establish a prima facie case to support a complaint under the Employment Equality Act,1998. No such prima facie case has been set out. The Complainant’s main discrimination complaint concerns the operation of the company Sick Pay and Workplace Injury Schemes. The Workplace Injury Scheme is Employer Discretionary and after the first six days an employee may request an extension to this payment from the General Manager. No request was forthcoming from the Complainant for any extension.

There was a delay in relation to the Complainant’s Social Welfare. This was partially due to the necessary employer certificates being delayed by the HR Staff Home Working for a number of days and also an open unresolved issue between Social Welfare and the Complainant. The HR Manager offered, at the time, to contact the local SW Office to expedite matters. None of these issues could be seen as discriminatory under the Employment Equality Act,1998.

The Complaint of “Failure to Provide Reasonable Accommodation” could not stand as the Complainant was on certified Sick leave from the 25th of June to the date of his resignation. Reasonable Accommodation requires that the Complainant is “fully capable” of work even allowing for Reasonable Accommodation. As the Complainant was off work on both his own and the Respondent Doctor’s advice, he could not have made a claim for Reasonable Accommodation. It was never raised as an issue. No Discrimination was possible.

2:2          CA-00047300-002 (Payment of Wages Act, 1991)

The Respondent operates a Sick Pay Scheme. It was presented in evidence. It provides for one week’s benefit for every completed year of service to a maximum of 12 weeks. The Complainant was allowed the benefit of four weeks benefit. The benefit is 50% of normal basic pay (inclusive of any Social Welfare payment received). The Complainant received his full entitlement. The Complainant also benefited from the Workplace Injury Policy. He did not seek any extension to the Discretionary period under the Injury policy.

It was important to note that the Workplace Injury policy had been amended in July 2020. Previous payments cited by the Complainant where he had been paid in full predated this amended policy. Evidence was presented of a Training Course where the new policy was explained in full to the Complainant.

There are no proper grounds under the Payment of Wages Act,1991 for a complaint.

In summary both the Sick pay and Injury policies are discretionary. The Complainant was paid his full entitlement.

2:3           CA-00047300-003 (Unfair Dismissals Act ,1977)

The Respondent pointed to the agreed Legal “tests” required in a Constructive Dismissal case namely Breach of Contact, Unreasonable Behaviour, and the full Utilisation of employment procedures.

It was their case that the Complainant resigned his position on the 10th September 2022 even before the investigation stage of the Disciplinary process had concluded. No Grievance was ever lodged in relation to his Sick Pay although the Company has well established suites of procedures in the Handbook.

The Complainant pointed to having used the Company Hotline. This was accepted but the Hotline is not a substitute for normal procedures. The opportunity to use the Grievance procedures, if this was his wish, was pointed out to him on the 9th September 2021 by Ms HB. The Complainant resigned the next day.

Regarding the other two Tests, the first, Breach of the Employment contract was rigorously denied. The Complainant’s’ contract was observed at all times in keeping with the Employee Handbook and the Contract of Employment.

The allegation of Unreasonable Behaviour was also denied. The Complainant had been involved in a serious altercation on the 25th June. It merited a serious Management investigation which was underway. This could not be described as in any way “Unreasonable Behaviour” by Management.

2:4        Respondent Oral Witnesses

The Production Manager Mr D and Ms M the HR Manager were the witnesses. They outlined in detail the events surrounding the follow up to the incident of the 25th of June. Details were described of witness interviews regarding the events. It was certainly possible that the story was not as clear cut as the Complainant alleged. However, nothing final had been concluded. All things considered; however, it was likely that the matters would have progressed to the next stage of a formal Disciplinary Hearing.

Ms M explained the incidents surrounding the Social Welfare certificates delays and the general operation of the Sick Pay Scheme& Injury Benefit Schemes.

However, the resignation of the Complainant on the 10th September pre-empted these events. It was clear that the other party, Mr X, to the Altercation had, also, now left the Company.

Both witnesses gave clear evidence and were vigorously cross examined by Mr Crann BL for the Complainant.

3:       CA: 00047300-001 (Equality Act,1998)

3:1        The relevant Law is the Employment Equality Act ,1998.

Discrimination is defined in Section 6

Discrimination for the purposes of this Act.

6.—( 1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(Highlight by Adjudication Officer)

Burden of proof.

85A.—(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

The Legal precedents following on from Section 85 A (quoted above) require that in the first case the Complainant must establish “an inference” that Discrimination Occurred. It does not have to be proven absolutely but such facts need to be set out as to justify the case going forward.

The major Legal Precedent case is the Mitchell v Southern Health Board [1999] ELR120 which established that solid facts are required rather than “Assumptions” by an Employee.

However Legal precedents notwithstanding all cases rest on their own factual background and specific evidence. These must be considered next.

3:1:2           Evidence in the Equality complaint CA: 00047300-001

The Complaint has two main elements – Discrimination due to a Disability and Failure to Provide Reasonable Accommodation.

Taking the Disability issue first the key requirement is to establish that a Disability actually existed.

“disability” means— Section 2 of the Employment Equality Act,1998.

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

In the case in hand the Complainant was on Sick leave following a Workplace “altercation”. He was examined by his own Medics and the Company Occupational Health Advisors.

Reading the OH report there is no obvious suggestion of a Disability as set out above. His own Medic describes his illness as a “Head Injury”. The OH Doctor, (Report of 26/07/2021), stated that

“There were no objective clinical signs to indicate any sinister pathology. There is some tenderness over the nose, neck, and shoulders. He is upset about the work situation”

Both Medics appeared confident that the Complainant would make a suitable recovery. He had in fact a broken nose from the “altercation”.

While not diminishing the effect on the Complainant it was hard to see this being actually a Disability as defined in the Act. The Complaint would soon recover and no obvious serious ill health consequences (“sinister pathology” as stated by the OH doctor) appeared to be in prospect.

However, even if it is accepted that the Complainant had a Disability -albeit of a very short-term nature - the Reasonable Accommodation sought was in effect full pay under the Company Sick Pay Scheme.

All evidence presented, both Oral and Written, stated that the provisions of the Sick Pay Scheme were honoured in full by the Respondent. The Injury Benefit element had been adjusted in the Summer (July) of 2020 to make changes that the Complainant now felt were to his disadvantage. The option was open to make a Discretionary Appeal to the General Manager. This did not happen although the Complainant felt that the use of the “Hotline” was effectively an appropriate equivalent. The “closing off” letter from the Help Line on the 9th September 2021 refers to the options still open to the Complainant -including using the established Grievance Procedure.

The other Discrimination aspect cited was effectively the delays in completing the Social Welfare paperwork by the company. This was referred to at length in the witness evidence. There were two elements, the Covid restriction on the HR office and the file issues of the Complainant with Social Welfare relating to an earlier claim. It was hard to see this as being Discriminatory Actions by the Respondent.

3:1:3         Summary Adjudication conclusions - Equality complaint.

Even allowing a high degree of latitude to the Complainant and accepting that his injury was a Disability as required by the Act the evidence presented, especially the oral testimony from witnesses such as Ms M and the Complainant himself, did not provide sufficient hard evidence to sustain a Disability complaint in the manner required by the Act.

The Equality aspect of this case has to fall. It does not succeed on the Equality Grounds.

3:2        CA-00047300-002 (Payment of Wages Act, 1991)

 The Payment of Wages complaint was in effect a claim that the operation of the Company Sick Pay scheme was in breach of Section 5 of the PoW Act ,1991. This refers in the main to “Deductions” from an employee’s wages. In this case the complaint was that in previous incidents the Complainant had received full pay not the 50% Sick pay or the short-term benefits of the Workplace injury policy that he had received since June 25th.

The relevant Section 5 is quoted below.

Regulation of certain deductions made, and payments received by employers.

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it

In the case in hand all the evidence presented both in writing and in Oral testimony demonstrated that the Complainant was treated exactly as provided for the In Sick Pay and Injury Benefit Schemes of the Company.

Section 5(1)(b) as set out above would seems to clearly apply. The issue of this former Payments prior to 2020 were dealt with by the amended Injury Benefit Scheme in July 2020. The Complainant had signed for the new scheme following a full training course. Evidence of employee signature and attendance was presented.

Accordingly, while the Complainant felt quite aggrieved, by the Respondent actions or lack of same in his view, following the June 25th incident, there is not a sustainable Payment of Wages Act,1991 complaint.

3:2:1       Adjudication Summary Conclusions -Payment of Wages

The Sick Pay & Injury Benefit Scheme were both agreed policies as per Section 5(1)(b). There was nothing underhand about their operation and as such no illegal deductions were made.

The Payment of Wages Act,1991 complaint is Not Well founded and has to fail.

3:3        CA-00047300-003 (Unfair Dismissals Act,1977)

3:3:1        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

 The reasonableness test assesses the conduct of the employer 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.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

However, all Leagl precedents considered, all cases rest on their own facts and particular evidence and these will now be considered.

3:3:2        Consideration of the Evidence presented

As this is a case of Constructive Dismissal it is useful to adopt the format of the “Tests” set out above

3:3:2:1              Breach of Employment Contract

All legal precedents point out that this has to be “Fundamental” -going to the very “Root of the contract”. In this case the Complainant was injured in a “Workplace Altercation”. He remained an employee and was given the full benefits of the Injury and Sick Pay Schemes. On his leaving employment he was paid in full all his outstanding monies. He was required to particate in an Investigation of the Altercation which was a normal Employer request in any industry.

The question of the changes to the Workplace Injury Scheme in July 2020 were fully discussed at the time and could not be seen as a Breach of Contract.

All told from the written materials and the Oral testimony it was very hard to see, from an Adjudication viewpoint, any “Fundamental breach of Contract”

Accordingly, this first “test” is not in the Complainants’ favour.

3:3:2:2            “Unreasonable Behaviours” by either side.   

Legal precedents state as, quoted above, that Unreasonable Behaviours must be very bad indeed -the word egregious is often used. The alleged Unreasonable Behaviours of the Respondent revolved around the operation of the Sick/Injury Policies and the Handling of the Investigation into the Altercation.

Extensive written materials were submitted and supported by Oral testimony from the Complainant and from Mr D, the Production Manager. Carefully re reading and considering all this material it was hard to see anything “Unreasonable” as required by the Act.  Mr D was conducting his Investigation, witnesses were being interviewed, CCTV was being reviewed (despite some technical and Data issues) and the Complaint was being kept informed. He was allowed Representation which he availed of.

To satisfy the Unfair Dismissals Act,1977 Unreasonable Behaviours must be fairly obvious and clearly very bad actions.

Nothing of this nature was evident from all the evidence and Oral testimony which was fully cross examined.

Accordingly, the second “test” from an Adjudication point of view, is not in the Complainant’s favour

3:3:2:3        Use of Employment Procedures /Grievance Policy /Appeals etc.

Legal precedents in this area effectively now require an Employee to have very largely exhausted all internal procedures before submitting a Resignation. The landmark cases would be Conway v Ulster Bank UD 474/1981and McCormack v Dunnes Stores UD1421/2008.

In this case the Respondent argued that the Complainant resigned on the 10th of September 2021 without having raised any formal Grievances despite the existence of the policy being advised to him by the Hotline Manager, Ms. HK.

The Complainant argued, in his Oral testimony, that the use of the Hotline was a full use of Company Procedures, and he did not have to also use the Respondent In House procedures as well.

The written materials from the Hotline were careful to emphasise that the Hotline was not a substitute for local procedures.

This confusion is possibly understandable on the Employees part. He was fully engaged with the Investigation and felt that the Hotline would address the Sick/ Injury Pay situation.

However, the ending of your employment by a resignation before the Investigation process was completed and not utilising the Grievance Procedures, despite being advised of their existence, weighs in the Respondent favour.

In summary conclusion from an Adjudication point of view, the Procedures argument is not absolutely clear cut. However, a telling argument is that the Complainant resigned before the outcome of the Investigation and before any possible Disciplinary Process had commenced.

On overall balance, despite Hotline reservations, the “Procedures” test has to be in the Respondent favour.

3:4          Overall Adjudication conclusions.

Having reviewed all the written materials and the Oral testimony of all witnesses the Conclusion has to be that the Complainants do not succeed. The Equality Complaint is not based on solid enough evidence of actual discrimination, the Payment of Wages complaint is provided for in Section 5(1) of the POW Act,1991 and the Constructive Dismissal complaint does not satisfy the accepted “Tests” in such cases.

Overall, the Complaints are not well founded and fail.

Constructive Dismissal, Payment of Wages, Sick & Injury Pay Schemes, Discrimination