Complainant

Respondent

Parties

Andrew  Gibson

Ulster Tyres Co Ltd

Representatives

Simon Gillespie instructed by Canny Corbett Solicitors

Declan Thomas 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-00051928-001

28/07/2022

This case is concerned with a complaint of alleged constructive dismissal. The Complainant was employed as a tyre fitter from 01/09/20008 until his solicitor notified the Respondent of his resignation from Ulster Tyres on 24/05/2022 with immediate effect. His final day in the workplace was 21 October 2020. Thereafter he was on sick leave until he resigned although his last actual medical certificate expired on 22nd April 2022. . The rate of pay at the time of termination was €525 per week for a 44-hour week. Constructive dismissal was denied by the Respondent.

It was submitted that the Complainant had experienced a period of intolerable treatment of him by the Respondent, in particular the actions and behaviour of Ms Fiona McGinley. He had no choice but to resign against the backdrop of that treatment. References were made to bullying. The Complainant was aware of the grievance and disciplinary procedures within the employment. However, his experience of how they were operated and implemented were such that he could not get a fair hearing if he followed those procedures. They were not independently applied and he could not be expected to exhaust them before terminating his employment. The facts in this case were such that they would show that where normally a person would be expected to exhaust the internal procedures before resigning, this case is an exception to that usual rule.

Summary of the Evidence of Mr Gibson

Mr Gibson said he was not 100% sure when he started with Ulster Tyres, he thought that it was 2006. The management structure was mainly Fiona McGinley and Brid McGinley with Joe McGinley there sometimes he was not sure of the management structure of the company. The day-to-day running was done by Fiona McGinley. The atmosphere in July 2020 wasn’t great, there was a lot of atmosphere going on. He went on to describe incidents. The first involved cigarette butts where he felt that F McGinley was unfairly directing comments at him but he was not the only one who smoked. Then there was a physical altercation involving two other employees in July 2020. He was on his mobile phone when this occurred. He told his Counsel that he tried to talk the boys around but did not personally intervene or become involved. Then there was a remark by Fiona McGinley about installing CCTV. She made a remark about catching anyone slacking that they would be sacked. He felt this remark was aimed at him the way she spoke. Also, he received a call about a new person starting and how he was to train them with another remark by Fiona McGinley- about keeping the new employee this time-which he also took was aimed at him, that he was the cause of people leaving. In August 2020 he was told if the bell rang, he was to let the customer in. He would be working on his own at that time but he was told he was to give priority to the customer. There was an issue on 18 August 2020 where he was queried about how long it took him to get back from a call. He was away for about twenty minutes but was challenged by Fiona McGinley who said that it does not take that long to make the trip. He is not sure if another person was there at the time-he found this degrading the way he was spoken to.

The Complainant accepted he received a contract of employment and was aware of the policies. Asked why he did not use the bullying and harassment procedure to make a complaint about Fiona McGinley, he said he felt that it was unfair, that he would have been dealing with all members of the family business.

Asked about his first disciplinary meeting of August 25th, 2020, he said that he did not know in advance what that was about, he was not told. He confirmed that he had not received a verbal warning before that meeting. He confirmed that the notes of the meeting were accurate. He confirmed that a customer complaint was brought up at the meeting and that he was asked by Mrs B McGinley if he thought what he was being paid was a lot of money and how would he feel if it was cut down.

On the 14 September 2020, the Complainant received a first written warning about being on his mobile phone which he accepted he was not supposed to use at work. He asked how he was supposed to answer messages from Fiona McGinley to his personal phone when she sent him work messages.

Three days later he received a second written warning. The witness said this was in relation to issues around Covid procedures which he thought he was doing although at the start he was not wearing a mask. The warning was in relation to cleaning a car.

On 14 October 2020 there was a complaint about him. He asked Fiona for a meeting with Joe or Brid about being bullied and was told there would be no meeting with them. On 21 October he got a letter calling him to a meeting. He took the letter home to his sister to read and explain what she thought it meant also explaining at the hearing that he was not the best at the reading. The following day he went to the doctor and was certified sick. The witness confirmed that he resigned off his own bat through his solicitor on 24 May 2022 as he felt he could not go back and that he couldn’t get a fair hearing or appeal in the family run business. He would have been complaining about Fiona McGinley to her own mother and father.

The Complainant confirmed that he obtained a new job as a tyre fitter job starting on June 2nd, 2022, earning more money.

Sick certs were provided showing anxiety depression and stress.

In response to the Respondent representative, the witness confirmed he had received his contract and terms in 2018. He confirmed that Fiona was his direct manager that he did not deal with the other family members on a day-to-day basis.

Regarding the cigarette butts asked did he accept that these were in the car park around his own car the witness said it was a reasonable instruction if it was aimed at all who smoked and not just him.

Regarding the meeting in September 2020, did he not accept that he knew what the meeting was about as he had received a copy of the consultant’s report-the report from the external investigation-the witness confirmed he was aware of the report. He was not involved in the altercation, he didn’t start it and tried to stop it. Referring to P61 of the report which suggested that he encouraged some of the behaviour, he said that as a joke and accepted it was inappropriate. Asked why he did not appeal the disciplinary sanction, he replied that thought it would have been unfair, that he would not have been fairly treated.  He knew he would be unfairly treated, he was never given a chance, they (the family) stood for themselves.

The various dates concerned with actual or possible disciplinary actions were set out and agreed:

25 August 2020-re outcome of investigation into altercation-written warning

17 September 2020-re breaches of Covid Guidelines-second written warning

7 October letter from F McGinley re performance generally and giving training work to another employee

14 October letter from F McGinley to Brid McGinley

21 October letter from B McGinley calling AG to a meeting the following day -22nd October 2020 and enclosing the note of a meeting between F McGinley and B McGinley on the 21st to discuss the letter of complaint dated October 14th.

Asked if he tried to raise issues with others in the Company-he replied that he did before he got the letter from Fiona McGinley but that she refused. He agreed that he would have seen Brid and sometimes Joe McGinley about the place at times and that he had worked for them for a long time.

Regarding the day when he was absent from the job for a period-asked did he accept that he was away for 45 minutes-he referred to traffic and did not think it was that long.

Regarding the Covid guidelines, asked if he accepted that he wasn’t following the guidelines, the witness said he thought he was doing them. He accepted that Fiona had spoken to him but he felt he was being picked on.

The witness agreed that he did receive correspondence from the Respondent on 2nd November 2021 which told him he could use the grievance procedure if he had issues and that he did not reply. He also agreed he had received similar correspondence on 28 April and 12 May 2022 and did not reply. His last medical certificate took him to the 22 April and there were no certificates after that date.

Asked by the Chair how he would have described his working relationship with Fiona McGinley prior to 2020, the Complainant said it had its ups and downs.

Asked by the Chair what he took from the letter of 21 October from Brid McGinley calling him to a meeting, he replied that he took it home to his sister and she rang someone else who said he should go sick the following day and to go and see a solicitor, that they thought the letter read as though he was going to be sacked.

Asked by the Chair why he did not reply to the letter from F McGinley in November 2021, the witness replied that he was very stressed that he did not know at times if he was coming or going. In May 2022 he went to the solicitor with all the letters from the Respondent in the previous months and told him he was not going back and told the solicitor to write the letter of resignation.

The contract of employment set out the various policies and procedures. That the Complainant was well versed in those procedures as there were some issues previously with his performance.

Regarding the first issue-the altercation between two other employees (and the complainant’s involvement) the principles of natural justice were followed, that investigation was conducted for the Respondent by an independent person, the Complainants rights were notified to him before the disciplinary meeting and he received a first written warning.

Regarding the second written warning, this was related to Covid-the failure of the Complainant to adhere to the Respondents guidelines.

From 2021, the Complainant had legal representation but the only issue raised was a request for information. No representations were made on behalf of the Complainant regarding the Respondent. None of the medical certificates submitted indicated workplace stress.  It would not have been fair of the Respondent to badger the Complainant when he was unwell. However, the correspondence issued from November 2021 did offer the Complainant the opportunity to air his grievances and other processes but he did not engage and did not take up those offers.

Referring to precedents, these were consistent is requiring an employee to exhaust procedures before resigning. It was a basic principle that an employee could not just walk out and it would be dangerous to depart from that principle. The WRC is not the place to air those grievances they should be raised at the level of the employer. In this case, the Respondent was hearing of the Complainants grievances for the first time in the submissions to the WRC.

Witness Fiona McGinley

Questioning from IBEC 

First written warning, the witness explained that the situation which occurred was one of alleged assault-new territory to them and they engaged an external investigator. The investigation was conducted fairly at an expense of 000s. The investigator concluded that two employees had a case to answer. Mr Gibson was on his mobile phone at the time of the incident which he should not have been as mobile phones were not to be used in the workplace. If he had not been on the phone and was attending to his work the incident might not have happened.

Regarding the Covid guidelines at first there were only the two of them on the premises. When everyone returned, she had briefed staff about what she termed the new normal regarding the HSE guidelines and she evolved the documentation for the workplace.  Generally co-operation was great among staff  -the Complainant was different. Masks and gloves were an issue. He was not wiping down cars-colleagues would point out to him that he was not following the guidelines-he made no effort to conceal what he was and was not doing. She said she spoke to him more strongly a few times. It is not that he was not aware of what he was to do-just that he seemed to think they did not apply to him. Asked why she considered the second written warning-September 17th, 2020, justified she spoke about a customer’s car he drove and not sanitising the car when he was finished. After the first written warning he should have taken accountability.

Regarding the cigarette butts, the witness said there are other smokers but his was the only red car and that was the only one where the butts were around the car. She specifically spoke to him to remove the butts.

Regarding the incident where he went to collect tyres and she spoke to him, the witness said she rang the premises and was told that Mr Gibson had left the premises 30 minutes earlier and was not back. When she asked where he was-the place where he went was 2.5 miles from the workplace. She received an earful of grief in return.

Regarding the allegation that she was bullying him, the witness said that she was in the firing line, that nowhere was it said that she was bullying him, no case of bullying was put forward-the first they heard of it was in the WRC complaints.

The witness explained that her parents are the Co Secretary and MD and Joe McGinley is her line manager.

Asked about the working relationship with Mr Gibson from 2006 to 2020, the witness said it had its ups and downs. They had worked together on fund raising activities. He would never go to her with work issues. Asked about the reference to costs to the company in the letter to her parents, the witness referred to damage caused by Mr Gibson which cost the Respondent €500 plus. Asked what she meant in her letter to her parents that more needed to be done -she meant that to try and remedy /to develop the situation but they never got that opportunity as Mr Gibson went out sick.

On behalf of the Complainant, Mr Gillespie pointed to elements of the procedures  around the bullying and harassment policies and the disciplinary policies in particular suggesting various breaches of those policies in terms of the witnesses own treatment of the Complainant, breaches of fair procedures ,in particular the right to know in advance of  the accusation or charge and the reason for a meeting, raising issues at a meeting without any indication of the subject in advance and failing to provide a proper appeal procedure. Specifically in relation to the written warning following on from the investigation report-he asked the witness where the basis was for sanctioning the Complainant for not interfering in an altercation. He asked the witness how long this altercation had lasted and she replied about 20 seconds. The witness referred to the external independent investigation which found that the Complainant had a case to answer. On the use of the mobile phone in the workplace to receive texts from the Complainant, the witness said this occurred only during Covid and when they were not in the workplace.

Regarding the issuing of the first and second warnings within three days of each other, the witness explained that the issue had arisen in June but that they were advised to await the outcome of the investigation and any disciplinary action before issuing a disciplinary warning related to breaches of Covid measures. In cross examination she clarified that the meeting on June 18 was informal, not a formal disciplinary meeting and there was no advance notice of that meeting as a disciplinary meeting. An email was set to everyone on June 10 but it was mainly aimed at the Complainant.

Under cross examination, the Respondent stated that an appeal could be sent by the Complainant to Brid or Tom. It was put to her that this could create an impression of bias as they were all family members., the witness replied that they had used an external person in an investigation and she was satisfied that Mr McGinley would make his own decisions based on the way he dealt with a situation involving another family member previously. Asked where it said in the policy that an appeal would be heard by an external person, the witness agreed that it does not say that but they had gone to great expense to use an external person earlier in 2020 and the Complainant was aware of them using an external person.

The Representative explored the signing of the letter of October 21st, specifically that the letter sent to the Complainant by Brid McGinley was pp. by Fiona McGinley-the witness who was also the person who had complained to Brid and Tom McGinley about the Complainant. The witness was asked if she saw that her signature on the letter suggested a lack of independence on the part of the Brid McGinley. The witness explained that she had pp. the letter for Brid McGinley as the latter did not have headed paper of her own and was not at the premises and did not have a printer. She confirmed that she had handed the letter to the Complainant when he was leaving work on the day in question.

In response to the Chair, the witness clarified that while the terms of reference for the external investigation did not include a written right to recommend that a disciplinary process should follow from the findings, that this would be the case was part of the discussions the Respondent held with the investigator i.e., that he could make such a recommendation/s.

Asked about the references to grievances in the correspondence to the Complainant commencing in November 2021, the witness replied that she was aware the Complainant had concerns towards her and they wanted to give him enough scope to raise them.

Were this a complaint of unfair dismissal by Ulster Tyres Ltd where they had terminated the employment relationship, they would have a very serious case to answer on the procedures they followed in the case of the Complainant in a period of less than six months in 2020. And also, on the disproportionate and unjustified sanctions heading almost certainly towards the ultimate sanction, dismissal. The conclusion by or on behalf of the Complainant that this would be the outcome of the meeting proposed in the letter of October 21st was not at all unreasonable in the circumstances. The relationship between Fiona McGinley and Andrew Gibson which they agree had its ups and downs over many years, took a sharp turn downwards in relation to the Covid measures and really never recovered. The procedural flaws in the Respondents conduct of the investigation and the disciplinary process over the same period are a litany of breaches of fair procedures-not one single aspect could be said to be conducted wholly or mainly through recognised fair procedures. One example was the second written warning concerned with breaches of the Covid regulations for the workplace. This was issued on September 17, without any formal disciplinary meeting, but the witness admitted that it was held back for three months while the investigation process concluded. When the investigation resulted in a written warning on September 14th, the Respondent then backdated the second warning to align with an informal meeting in June and, remarkably, increased the second sanction to a second written warning based on the Complainant having received a first written warning three days earlier on September 14th. Safe to say this was an unusual interpretation of how the stages of the disciplinary procedure can be applied. None of the disciplinary warnings identify the appeal hearer or to whom the appeal was to be submitted. The idea that an appeal from one member of the family to her parents represents a real and meaningful appeals procedure is risible. The pp. letter issued by Fiona McGinley on behalf of Brid McGinley is evidence in support of this conclusion if evidence were needed.

It is not that the Complainant did himself any favours over the same period. The Respondent was entitled to take the view that he was deliberately thumbing his nose at any regulation which was overseen by Fiona McGinley-Covid, the care less disposal of cigarette butts, being on the mobile phone at work to name but three of the issues concerning his behaviour which arose for over a period of a few months.

The forgoing points are all made to demonstrate to the Respondent how far offside they were with their application of investigation and disciplinary measures in the case of the Complainant and to make it clear to the Complainant that he contributed significantly to his own difficulties in those few months.

All pretty straight forward in a case of dismissal directly by the Respondent. However, my role is to decide whether the Complainants case of constructive dismissal should succeed. Certainly, the bond of mutual respect was between Fiona McGinley and Andrew Gibson was broken by October 21st, 2020. Regard must be had however, to the circumstances that surrounded the actual resignation of the Complainant in May 2022. Albeit belatedly, the Complainant did open correspondence with the Complainant in November 2021 clearly now under some professional guidance which they took heed of. It may well be that the respondent did not want Mr Gibson to return any more than he wanted to return but nonetheless the offers of submitting a grievance was made in November 2021 and again in April 2022. Allowing that he was unwell in November 2021 I am satisfied that he chose repeatedly to dismiss the offers made to him by the respondent albeit he had access to a legal representative at that stage. That representative could have written expressing his concerns and seeking acceptable avenues for either considering his grievances and how they would be addressed or clarifying that there were no disciplinary procedures ongoing or whatever was required to enable the Complainant to make an informed decision about his future. Ultimately the Complainant made a decision as to what was best for him and his health at that stage as he was entitled to do and instructed his solicitor accordingly. The correct decision for him probably but not one which forms the basis of a well-founded complaint of constructive dismissal in May 2022 some nineteen months after he had last worked with the respondent and without engaging with the correspondence from the Respondent in November 2021 and again in April 2022.

CA-00051928 The Complaint by Andrew Gibson of alleged unfair dismissal by Ulster Tyres Ltd is not well founded and as provided for in Section 7 of the Act the claim is dismissed.

Constructive Dismissal