Complainant

Respondent

Parties

Gary  Casey

Keenan Timber Frames Ltd As Above

Representatives

Nicola Burke HR Duo

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-00052531-001

01/09/2022

The Complainant alleges that he was constructively dismissed from his employment following repeated incidents of bullying by another employee. The Respondent denies that the Complainant was constructively dismissed and state that he did not use the company grievance procedure before he resigned.

The Complainant following the affirmation gave evidence as follows:

He started with the Respondent on the 1st March 2021. He was given a copy of the grievance procedure when he started. He was very happy where he was, and he enjoyed working there. After six weeks he was made foreman and was given a pay rise. He was then in charge of “the saw”. It was used to saw the timber framed homes. The saw is very fast moving, and you had to be very careful with it.  In May 2021 there was an accident on the saw. A piece of wood flew off it and hit him on the head. He was taken to hospital. He was off work for a week or so. When he returned to work he was asked by Ronan Byrne, the Production Manager, if he wanted to “proceed with the matter”. He thought he was asking about a personal injury claim.  He said he just wanted to get on with the job. He didn’t actually use the word “sue”. Around that time the Complainant’s father was extremely ill. He was finding it very hard. He and his father worked together for years. On the 25th August 2021 his father died. He took two weeks off. He went back to work at the end of September 2021. On the 6th December 2021 he had a very bad chest infection. He was off again. His leave was certified. All of his leave was certified.

Over the Christmas holidays he was assaulted.  The gardai were called in relation to the matter. He was badly injured in the assault. He was taken to hospital and was then advised to rest.  He rested up over the holidays. He went back to work as scheduled in January. His hand started to swell up. It had been originally injured in the assault but was fine over Christmas as he wasn’t using it.  He was out of seventeen days. His absence was partly because of his hand and partly because of his family having covid. He returned to work on the 27th January 2022. He worked until the 28th March. He was off then until the 3rd April. He has epididymitis. It flares up from time to time.  It is very painful. He went to the GP and got a certificate. Then from 21st June – 13th July he had covid. He went back to work on the 14th July. He was informed by Mr Byrne that he was being move to “spandrels “department. Essential it means that he was tasked with making up the walls of the homes. It is more hands on than working with the saw. It also involves the use of an airgun, all the time. He asked why he was being moved and was told that it was company policy and that lots of others were being moved. However, the Complainant didn’t know anyone else who was moved. The employee who was covering for the Complainant was left in his position and he was moved. He thinks he was moved because he was absent so much. He does understand why but he had a really hard time of it in 2021 and 2022 and was hoping the Company realised that. He asked if he could be moved to a different role. They said no. He said he was thinking of resigning. He was asked to think about it over the builder’s holidays. He had spoken to Mr. Boyle about it several times.  Over the holidays he did think about it. He decided to come back and to give it a go. He did try. It took time to learn it all. It was a very fast moving job, but he was good at his job. The man he was working with was James Hughes.  He was the Supervisor and wasn’t very friendly. He thought he was better that everyone. He belittled the Complainant in front of others and made a laughing stock of him regularly. He went to Stephen Boyle and set out his complaints. He accepted in cross examination that he didn’t tell Mr Boyle about James Hughes and his treatment of the Complainant. He just said he wasn’t happy. He asked if he could be moved. Mr. Boyle in turn asked Mr Byrne if he could be moved. He was informed that there was nothing available at the moment. Mr Hughes continued to belittle him. Then on his dad’s first year anniversary he went into work, Mr Hughes was particularly harsh on him that day. He was shouting at him and waving a hammer at some timber, he almost hit the Complainant. Others came over to see if the Complainant was ok. He said “can you not read a tape you fucking cunt” . The Complainant found that really offensive. That was the last straw for the Complainant. He worked until the 10.30 break. He went out to the car to settle himself, he came back in and he went to HR and told Ms Cummiskey that was resigning. The Respondent stated that Ms. Cummiskey wasn’t in HR. Ms Keenan was HR. The Complainant did say that he had dealt with Ms Keenan before in relation to HR matters. In any event Ms Cummiskey asked if he would reconsider. He said no. She went and get Mr Byrne who was a Manager. He asked if he would reconsider. The Complainant asked if there was any chance he could be moved to another department. Mr. Byrne said “no”. The Complainant said if he couldn’t be moved, he was going to resign. He was asked again to think about it and not make a rash decision.  He was asked to sign a resignation letter. He signed it. He left. This is the first job he has every walked out on and he has been working since he was sixteen.

He got a job within three weeks. He is still working there. He is paid more than he was when working with the Respondent.

Ms Cheryl Keenan after taking the affirmation gave her evidence as follows:

She has been with the company for five years now. She has an open door policy, two days a week where any employee can come in to discuss any issues they are having. She had many interactions with the Complainant over his time there. The main one was when his dad was ill. She told him to go home and to be with his father as family come first. Unfortunately, his father died that day.  She also had a wellbeing meeting after his assault in December. He said he was depressed and was struggling. She advised him to maybe get some counselling. She also spoke to him on the family fun day. He text her that night to thank her for a great day. Ms Keenan was extremely surprised when the Complainant resigned.  

Mr. Stephen Boyle after taking the affirmation gave her evidence as follows:

He has been with the company four years. He is floor supervisor in the spandrels department. He has been floor manager for two years. On a day -to- day basis he checks the various areas and sets out work for the day and keeps an eye on production. The Complainant did ask Mr Boyle if he could be moved as he was unhappy where he was. He spoke to him on the way to lunch. He told him he was thinking of resigning. He said he didn’t want him to leave as he was valued member of the company. He asked him to talk to Mr Byrne before he made any decisions.

Mr. Ronan Byrne after taking the affirmation gave her evidence as follows.

He had been with the company eighteen years and he the Production Manager. Mr. Byrne spoke to the Complainant on numerous occasions as he checked regularly how he was getting on with his work. He did have a conversation with him on the day he resigned. He walked into the office when he was in with Ms Cummiskey. He did tell him he wanted to move and if not, he wanted to resign.  He asked him to think about it over lunch. The Complainant came back after small lunch, and he said that he wanted to resign. Mr. Byrne asked if he would sign a letter of resignation or if not, the company had a template that he could sign. He did not say that he couldn’t leave until he signed the letter as the Complainant said in his evidence. He told him that if he changed his mind in the future, he was always welcome back.

The claim is one of constructive Dismissal.

Section 1 of the Unfair Dismissal Act defines constructive dismissal. It is defined as:

“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 the 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”

The burden of proof, which is a very high one, lies on the Complainant. He must show that his resignation was not voluntary.  As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“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”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her 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 importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to him unless he can show that said remedies are unfair”.

The Complainant, who was an extremely nice man who clearly was very conscientious and took pride in is work, admits that he didn’t tell the Respondent about the issues he was having with Mr. Hughes. I accept his evidence that he didn’t want to “rat” on any of his work colleagues, however, in taking that stance, honourable and all as that is, it had the result of not allowing the Respondent an opportunity to deal with the situation. The company have a grievance procedure and the Complainant was aware of it. He however decided not to utilise it. In those circumstances I find that the Complainant’s decision to termination his employment was premature and unreasonable. Accordingly, I find that the complaint fails.

The complaint fails.