Complainant

Respondent

Parties

Roy  Sheahan

Kendra Civil Engineering (Ireland) Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Represented by Michael Kinsley BL, instructed by  Daly Khurshid Solicitors

Represented by Fiona Egan, Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00044757-001

23/06/2021

The complainant was employed by the respondent from 11 April 2017 as a general operative. His duties involved general construction and machinery work. The complainant states that in January 2020, during the course of his employment, he sustained a serious injury when a metal bucket on a mechanical digger collided with and crushed his hand. The complainant states that he required medical treatment and was forced to take leave from work. The complainant asserts that he was not required by his employer to provide sick certificates during his absence. The complainant states that he continued to communicate with his employer during his absence. The complainant states that he was not informed at any stage that his employment with the respondent had ended and management at the respondent continued to communicate with the complainant during his absence from work.

The complainant asserts that during his absence from work, he informed management of the respondent that he was bringing proceedings regarding the injury he had sustained at work in January 2020. In August 2020, the complainant contacted his employer and informed them that he was fit to return to work and provided medical evidence to support his request. The complainant states that he returned to work on 7 September 2020 and took up duties as a general operative and continued to carry out general construction and machinery duties. The complainant states that he was not provided with a new written contract of employment and continued to report to the same management at the company.

The complainant states that during August 2020, he had discussed his return to work with Mr. C, Managing Director of the respondent. The complainant submits that he had been informed by Mr. C that he would be allocated duties at the Airport site when he returned to work. The complainant asserts that when he spoke to Mr. C in September 2020 regarding his return to work, he was informed that he would in fact be returning to work at the Ashtown site. The complainant states that he was assured that the work at the Ashtown site would be light and would not be of a nature which would aggravate his injury. The complainant states that he was assured by Mr. C that his assignment  to the Ashtown site was temporary and would last only a few weeks after which the complainant would be transferred to the Airport site.

The complainant states that shortly after his commencement at the Ashtown site, it became clear to the complainant that the work was quite physical in nature and was aggravating his hand injury. The complainant states that Mr. C visited the Ashtown site a few days after the complainant commenced work there and the complainant informed Mr. C that his hand was sore and was aggravating his injury. The complainant states that during September 2020, Mr. M, Safety Officer with the respondent visited the Ashtown site on a number of occasions and spoke to the complainant. The complainant states that he informed Mr. M about the effect that the heavy work at the Ashtown site was having on his hand injury. The complainant states that he also raised with Mr. M the issue of his training certificate for the operation of the Abrasive Wheel being out of date and sought updated training as required when operating this machinery.

The complainant states that in October 2020, he completed a safety awareness course at the request of the respondent. The complainant states that it had been agreed with Mr. C and Mr. M that he would take up lighter duties at the Airport site when he had completed this course. The complainant asserts that in October 2020, the complainant asked Mr. M to confirm when he would be commencing duties at the Airport site. The complainant contends that again he stated that the work he was carrying out at the Ashtown site was unsuitable and was causing him injury. The complainant states that he said in a text message to Mr. C “The site I am on now is a lot of heavy work and my hand isn’t getting any better there.” The complainant states that Mr. C replied “Leave it with me Roy, I’ll see about the Airport.” The complainant contends that following this message exchange with Mr. C, Mr. M (Safety Officer) approached him and informed him that his transfer to the Airport site could not happen as the complainant had brought a claim in respect of his injury. The complainant states that he protested to Mr. M that the work he was carrying out at the Ashtown site was unsuitable and that it was causing him injury. The complainant states that he also complained about the absence of training in respect of the Abrasive Wheel equipment.

The complainant states that in late November 2020, he was transferred to another site in Santry and again was tasked with heavy and physical duties which caused the injury to his hand to be aggravated. The complainant states that his hands became severely injured and he complained on the respondent’s Whats App group on 15 December 2020. The complainant states that he repeated that the work he was being tasked with was unsuitable and was causing him injury. The complainant states that he received a phone call from Mr. C after this message and Mr. C assured the complainant that he would meet him on 18 December 2020 to discuss the complainant’s concerns. The complainant states that he received no communication from Mr. C on 18 December 2020 and on 22 December, the complainant again raised the same safety concerns with Mr. M via text message. The complainant states that on 24 December 2020, with the danger posed to his hands and with no support being provided by his employer, the complainant informed his manager Mr. C that he was resigning as a result of his treatment at work and because of the unsafe conditions at his workplace. The complainant states that Mr. C replied stating “No problem Roy”.          

Identity of the Employer

The complainant states that Kendra Civil Engineering (Ireland) Ltd. (KCE) claims that the second respondent Kendra Plant Hire Ltd. (KPH) was the complainant’s employer from September 2020. In support of this assertion, the respondent had submitted a contract of employment. The complainant asserts that this contract was not provided to him and did not sign any such contract.  It was submitted that the complainant remained in the employment  of KCE following his return to work in September 2020. The complainant states that he continued, during his absence from work to communicate with management of KCE. It was submitted that following his return to work, the complainant continued to work under the management and control of KCE. The complainant states that he continued to work on sites controlled by KCE and communicated with KCE management regarding his health and safety concerns and his decision to leave the workplace.

It was submitted that KCE and KPH are related entities with the same shareholding and the same registered address. The complainant states that KCE continued to exert control over the work conducted by the complainant following his return to work in September 2020. It was submitted that the fact that KCE continued to be the complainant’s employer after his return in September 2020 is evident from the communications between the parties prior to and after his return to work. It was submitted that a mutuality of obligation continued to exist between the complainant and KCE after his return to work in September 2020. The complainant cites the caselaw in Brightwater Selection Ireland Ltd v Minister for Social and Family Affairs [2011] IEHC and Draycar Ltd. V Paul Whelan, Patricia Bermingham, Mary Anne Farrell and  Clare O’Rourke [1993] ELR 119. It was submitted that the identity of an employer and the existence of a contract of employment between an employee and an employer is a matter to be determined by an Adjudication Officer having heard all the evidence on the matter.

Length of Service

The complainant asserts that he continued to be employed by KCE following his return to work in September 2020. It was submitted that no dismissal of the complainant or termination of his contract of employment with KCE took place prior to September 2020. It was submitted that the complainant and KCE management continued to communicate during the complainant’s absence in 2020 and that the complainant’s return to work was organised by management at KCE. The complainant submits that any absence from work by the complainant in 2020 was absence for reasons of sick leave and was agreed between the complainant and his employer KCE.

It was submitted that the complainant was neither dismissed by KCE nor did he voluntarily leave his employment with KCE. It was further submitted that if the complainant was dismissed by KCE in  2020, this was followed by his immediate re-employment thus preserving his continuity of employment.

It was submitted that should the Adjudication Officer decide that the complainant was employed by KPH at the time of his dismissal, it is submitted that the complainant was not required to have 12 months service as he was dismissed for raising matters which came within the definition of a protected disclosure, for the purposes of the Protected Disclosures Act 2014 i.e. that the complainant’s health and safety was being endangered.

The complainant highlights the case of Smith v RSA Insurance Ltd UD1673/2013 wherein the Employment Appeals Tribunal set out the test which must be applied where a complainant claims that they have been constructively dismissed. It stated that an employee will be constructively dismissed where “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving” or where “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving.” The complainant also cites the case of Bracebridge Engineering Ltd. V Darby [1990] IRLR 3 wherein the UK EAT found that an employee who had been badly mistreated by a fellow employee had been entitled to treat herself as being constructively dismissed where her employer failed in its duty to investigate or deal with the behaviour of the offending employee.

The complainant states that in relation to his financial loss he made great efforts to secure employment and did so in Summer 2021 following his dismissal.

Protected Disclosures Act 2014

The complainant states that the disclosures he made since September 2020 are protected disclosures for the purposes of the 2014 Act. It was submitted that the various disclosures made by the complainant contained “relevant information” and related to “relevant wrongdoings” for the purposes of Section 5. The complainant cites the caselaw in Norbrook Laboratories v Shaw [2014] wherein the UK EAT held that the protected disclosure had been made over the course of several communications by the relevant employee. The complainant submits that the disclosures made by him concerned the health and safety of the complainant and other employees at the respondent organisation. The complainant maintains that he made his disclosures in a manner compliant with the requirements of section 6 of the 2014 Act.

The complainant asserts that the said disclosures, made on a number of occasions to the respondent, verbally and in writing, contained sufficient information to allow the respondent to identify what was being disclosed to it. It was submitted that in Baranya v Rosderra Meats, the Supreme Court made clear that the fact that a complaint amounts to a grievance does not exclude it from being considered a “protected disclosure” for the purposes of the 2014 Act. It was submitted that the complainant was dismissed for raising matters which amount to a protected disclosure and therefore the 12 month requirement under Section 2 of the 1977 Act does not apply. 

The respondent raised a preliminary point, in that, it states the complainant’s employment with Kendra Civil Engineering Ltd ceased on 29 May 2020 and the complainant began employment with Kendra Plant Hire Ltd., a separate legal entity on 7 September 2020. The respondent states that the complainant does not have the requisite service required under the Unfair Dismissals Act. The respondent states that there was no communication of a termination of employment of any kind on its part. The respondent submits that it is not aware of any health and safety complaint raised by the complainant during the course of his employment. The respondent’s position is that a verbal resignation on behalf of the complainant occurred.

Background  

The respondent states that the complainant began employment with Kendra Civil Engineering Ltd KCE on 4 April 2016 as a general operative. In February 2020, the complainant sustained an injury to his hand whilst working on a client site. The respondent states that the complainant received a number of weeks of paid leave as a result, without the request of medical certificates as required by the Organisation of Working Time Act. The respondent states that the complainant contacted the respondent in August 2020, noting that he was fit to return to work and requested a return date. The complainant provided two medical letters, one from his Orthopaedic and Hand Surgeon dated 27 August 2020 which stated “his fracture is well healed and he had excellent hand function. He is free to pursue unrestricted work activities”. 

The respondent states that on his return to work, on 7 September 2020, the complainant was placed in the position of general operative with Kendra Plant Hire KPH, a sister company of Kendra Civil Engineering Ltd. Due to the work commitments of the respondent at that juncture and in line with the medical letter. The respondent states that a second medical letter was received from the complainant’s GP dated 9 September 2020. This letter stated “I suppose as an initial lead in, it might be in Roy’s interest to start with lighter duties. Hopefully all will go well.”

The respondent asserts that the complainant’s return to work and subsequent three months brought no issues to the respondent’s attention. The respondent states that on 15 December 2020, the complainant texted into the staff Whats App group stating that he had an injury since returning to work and had another injury to his hand and that he had “told the lad from Liffeys” that he was seeing a physiotherapist and a hand specialist. The respondent states that it contacted their client  whose site the complainant had been working on  to enquire into the alleged on site injury, however no accident was recorded by the company in relation to the complainant during the timeframe in question.

The respondent states that on 24 December 2020 the complainant phoned the Managing Director  and informed him that he was resigning  from his position within the company. It was submitted that no issues were raised by the complainant in respect of his working environment, his treatment, or health and safety concerns as alleged.    

The respondent submits that the complainant did not utilise and exhaust internal remedies relating to the grievance procedure.

The respondent cites the following caselaw in support of its case, Tusla v Flynn UDD1810 (2018), An Employee v An Employer UD720 (2006), Barry v Precision Software Ltd. UD 624 (2005), Donegan v Co. Limerick VEC UD 828 (2011) Bronagh Whelan v Glana Controlled Hygiene Ltd. ADJ 28850.

In relation to the complainant’s mitigation of loss, the respondent highlights the case of Cityjet v Juan Ramon Sanchez Gil UDD 215 wherein the Labour Court stated “the Court must have regard to the measures adopted by the employee to mitigate his loss. The legislation does not allow the Court to award compensation in an amount that goes beyond the financial loss attributable to the dismissal.”

Preliminary Issue – Identity of the Employer

The respondent has argued that the complainant’s employment with Kendra Civil Engineering Ltd ceased on 29 May 2020 and the complainant began employment with Kendra Plant Hire Ltd., a separate legal entity on 7 September 2020. In this regard, the respondent states that the complainant does not have the requisite service required under the Unfair Dismissals Act.

It was submitted by the complainant that no dismissal of the complainant or termination of his contract of employment with KCE ever took place prior to September 2020. It was submitted that the complainant and KCE management continued to communicate during the complainant’s absence in 2020 and that the complainant’s return to work was organised by management at KCE. The complainant submits that any absence from work by the complainant in 2020 was absence for reasons of sick leave and was agreed between the complainant and his employer KCE.

I note that KCE and KPH are related entities with the same shareholding and same address. I note that KCE continued to exert control over the work conducted by the complainant following his return to work in September 2020. I find that a mutuality of obligation continued to exist between KCE and the complainant following his return to work in September 2020. Based on the evidence heard, I find that no dismissal of the complainant or termination of his contract of employment with KCE took place prior to September 2020.

I note that under the Unfair Dismissals Act, paragraph 6 of Schedule 1 of the 1973 Act provides: “The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.” 

It was submitted that the complainant was neither dismissed by KCE nor did he voluntarily leave his employment with KCE. It was further submitted that if the complainant was dismissed by KCE in  2020, this was followed by his immediate re-employment thus preserving his continuity of employment.

In all of the circumstances in the within matter, I find that the complainant continued to be employed by Kendra Civil Engineering Ltd. following his return to work in September 2020. 

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

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

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

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

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

‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

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

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

In the within case, the complainant has alleged that his conditions of employment were intolerable, in that, the work he was carrying out at the Ashtown site was quite physical in nature and was aggravating his hand injury. He stated that he was required to undertake heavy work which included lifting tactile paving slabs and working with a concrete saw. The complainant states that he also raised the issue of his training certificate for the operation of the abrasive wheel being out of date so as he would be in a position to operate this machinery. He states that it was agreed with the managing director and the safety officer that he would take up lighter duties at the Airport site. In this regard I note the text message sent to the managing director in November 2020 “The site I am on now is a lot of heavy work and my hand isn’t getting any better”, the managing director replied “Leave it with me Roy, I’ll see about the Airport”. The complainant alleges that following this message exchange with the managing director, the safety officer approached the complainant and informed him that his transfer to the Airport site could not happen as the complainant had brought a claim in respect of his injury.  The respondent denies this and states that no issues were raised by the complainant in respect of his working environment, his treatment, or health and safety concerns as alleged.  The respondent further states that the failure of the complainant to utilise the grievance procedure or the respondent’s internal procedures is fatal to his complaint.

The safety officer stated that he had spoken to the complainant during monthly safety audits at the site and the complainant never raised an issue in respect of an injury. The safety officer provided copies of audits up to November 2020. Upon cross examination by the complainant’s Counsel as to the whereabouts of safety audits for December 2020 and January 2021, the safety officer stated that he did not have same.

The complainant stated that he had hurt his right hand since returning to work due to the heavy duty nature of the work involved.  In this regard, I note that the complainant put up a post on 15 December on the staff whats app group stating “I have an injury since I went back to work and now I have another one on my right hand from work, nothing broke or crushed, I’v told d head lad for liffeys and I am seeing my physio so waiting on a hand specialist”.

Based on all of the evidence heard, I consider that the complainant did bring issues regarding the heavy duty work he was carrying out and the fact that it was exacerbating his hand injury to the respondent but the respondent did not put in place measures to deal with said concerns. Based on all the evidence heard and the documentation received, I consider that the complainant felt he had no other option but to resign his position as a result of the conduct of the respondent.  I find that the actions of the respondent towards the complainant fell short of behaviour one could expect from a reasonable employer. Having regard to the accumulation of the foregoing points, I find that the complainant was constructively dismissed within the meaning of the Act and consequently his complaint is well-founded.

However, in calculating the level of compensation, I took into consideration the efforts of the complainant to mitigate his losses as I am required to do by section 7(2)(c) of the Act.  I find that the complainant’s efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd UD 858/1999 that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

I find that the complainant was unfairly dismissed under the Unfair Dismissals Act and accordingly his claim is well-founded.

In calculating compensation, regard must be had to the complainant’s attempts to mitigate his losses following his dismissal. In this regard, I note the complainant’s evidence that he secured alternative employment in late May 2021, some 5 months after his dismissal. Based on the evidence heard, I consider that the complainant was tardy in making appropriate efforts in attempting to mitigate his loss arising from his dismissal. Having regard to the totality of the evidence presented, I award the complainant financial compensation of €6,000 which is just and equitable in all of the circumstances of the within claim.

Constructive dismissal