Complainant

Respondent

Parties

Glen  Cotter

Marlboro Trust (Retail) Limited

Representatives

Jack Sreenan BL instructed by  Patrick J. O'Shea & Co. Solicitors

Sophie Crosbie , Regional Manager, IBEC appeared on day one of hearing.

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-00046291-001

17/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046313-001

20/09/2021

On 17 September 2021, through his Solicitor, the complainant made a claim for constructive dismissal against the Respondent company. Some three days later, on September 20, 2021, the complainant augmented the claim to include a complaint on being required to work more than the maximum permitted number of hours.

Both complaints were conjoined and heard together

CA-00046291-001   Claim for Constructive Dismissal

CA-00046313-001 Organisation of Working Time Act, 1997

Both parties were represented at hearing and submitted comprehensive outline submissions. On the first day of hearing, the Respondent Insurers appointed a Watching Brief to the Public Hearing.

The Respondent came on notice in the case on 29 September 2021.

The Parties assisted in my understanding of the Organisational Hierarchy by way of an Organisational Chart, which explained the key roles and their relationship to the complainant.

The Complainant worked as a Relief Supervisor and Sales Representative on door-to-door sales and credit management from 6 January 2014 to 15 April 2021. He submitted that he was paid a gross €780.00 gross in respect of a 60-hour week. He outlined that he found new work in January 2022, however, a weekly net differential endured at €254.00 per week.

Parallel proceedings are underway at the Circuit Court. The Complainants representatives expressed a disappointment that the hearing in the instant case was not stayed or adjourned to “facilitate a resolution and avoid a situation where there could be potential inconsistencies between the WRC adjudication and Circuit Court trial.

This matter was dealt with as a Preliminary Issue

CA-00046291-001   Claim for Constructive Dismissal

Counsel for the Complainant outlined that Circuit Court proceedings were in being. He made application to postpone the instant hearing on the balance of convenience favouring such an approach.

He submitted that an inexcusable pattern of events occurred within the complainant’s employment between the years 2014 to 2021. These amounted to the same set of facts.

Counsel outlined that the Circuit Court proceedings, lodged a number of weeks previously were aimed at addressing bullying and harassment.

Substantive Case:

The Complainant submitted that he had to leave his job on 15 April 2021 due to the conduct of his employer.

Counsel detailed that at the beginning of his employment, the complainant had been employed as a Relief Supervisor until becoming a Sales Representative during October 2017.It was extremely difficult, early on.

The Respondent business centred on sale of consumer goods on credit in a retail and home setting with follow up monitoring of agreed repayment plans.

The Complainants working hours were erratic and in excess of the contracted 45 hours per week. There was no extra pay for these extra forced hours.

The nature of the work involved assessing the preexisting repayment plans. Counsel referred to a discovery made by the complainant during his “field run “in June 2015, that the repayment plans were fixed to multiples of entities and disproportionate to income generated by the customers. The Complainant used his discretion to modify the repayment plans to fit the customer better.

What followed was a distancing response by Mr. A, his manager who “behaved in a way which was aggressive, belittling and condescending “towards the complainant, questioning whether he was dyslexic?

In March 2016, the complainant was covering a run with Mr. A, when again taunted by him and compelled to work late.

Conflict continued between Mr. and the complainant into August 2016, where the complainant experienced aggressive and verbally abusive behaviour.

In February 2017, further interpersonal conflict flared up when the complainant sought to work around sick leave agreed to care for his wife against a balance of the work arrangements.

He experienced a direct verbal attack from Mr. A which caused him fear and apprehension of violence.

During March 2017, the complainant, while still a relief supervisor was working as a locum sales representative for a colleague on sick leave. He had been assured that sales rep expenses would materialise. He received mixed messages on payment, but, ultimately, he did not receive payment for these expenses. The complainant was humiliated.

In October 2017, the complainant moved to a Sales Representative role and was paid on commission. The uncertainty and interpersonal conflict continued with Mr. A.

In June 2018, on a field trip, Mr. A felt compelled to socialise with Mr A and was disgusted to be passed pornography on Mr. A’s phone.

In February 2020, the complainant reported this upwards in the company to the CEO and was asked “why he doesn’t just quit? “

The Complainant replied that he did not want to be bullied out of a job that supported him and his family. The CEO spoke with Mr. A, but the behaviour persisted.

The Complainant made an unsuccessful bid to change Manager in February 2019 by making the request to Mr. A’s boss. He told Mr B that he was on medication due to the bullying and harassment.

Mr B made an unfavourable comparison between the complainant and Mr. E, a former colleague, terminated for sexual harassment. This upset the complainant further.

By January 29, 2020, the complainant had discovered that a light kept appearing on his van dashboard and sought to have it fixed at the Dealers.

A dispute arose on the provision of a replacement van which culminated in a direct verbal attack from the Transport Manager at the respondent company. This caused the complainant to make a complaint to the Gardai.

The complainant was stressed as a result and proceeded on sick leave, marked as bullying “-acute stress reaction “

In or around February 2020, the complainant appointed Solicitors to represent him, and a letter dated 4 February 2020 was sent to his employers which summarised the situation from the complainant’s perspective and sought to invoke the grievance procedure. The Respondent changed the line manager responsible for the complainant to Mr Z and matters improved significantly for him.

The Complainant suffered migraine at work during July 2020 and notified Mr C of sick leave and availed of two days sick leave. On his return to work, the complainant was remonstrated by Mr B and Mr C for missing the deadline time for calling in sick as the company had not covered his run.

On 10 June 2020 Mr B told the complainant to hand over cash of €1255 value from his run to Ms N, his Kerry based counterpart, who was using the sum to provide a customer loan.

Some 6 weeks later Mr C queried with the complainant why a lodgement slips of €1200 was in being without associated cash? The Complainant could not remember, and he was placed on notice that a continued absence of the cash would result in a liability for him or face dismissal.

Some weeks later the complainant recalled the June circumstances of the emergency loan endorsed by the company and imparted that information back.

He proceeded on sick leave from September 2020 as “he felt extremely stressed and mentally unwell due to these accusations “He did not return to the workplace after this.

An audit blended with performance review was then undertaken and posted to the complainant during this sick leave. This resulted in a planned extension of his route complete with earlier start times.

The issue of the unaccounted-for monies seemed to endure, and the complainant was suspended for two weeks to facilitate an investigation. He did not attend due to illness.

The Kerry counterpart, Ms N had told the company she was unaware of the monies, which she subsequently denied in conversation with the complainant and offered to clarify this to the management.

Ms N was not called on by the company to clarify. The complainant formed the view that the company was using this matter as leverage to manage him out of the business.

Counsel submitted that the Respondent had breached the complainant’s contract by inordinate and excessive working hours and insufficient rest periods. The complainant was subjected to a climate of bullying and harassment without visible modification.

Counsel also submitted that the complainant was compelled to experience persistent bullying, harassment, threat and abuses by agents of the Respondent without end. It took an intervention by the complainant’s solicitor to change the line manager from Mr A to Mr C.

The Complainant was at a loss to understand why he was subjected to a disciplinary process when the necessary clarification to the contrary was in the respondents’ own hands from day one.?

Counsel contended that the complainant had hoped for a resolution when the line management system changed, but he was then faced with an allegation of misappropriated funds in the context of a disciplinary hearing. He was exasperated by the lack of response to the queries he raised and his

continuance in employment was not viable.

He gave two weeks’ notice of leaving employment on 15 April 2021 as working for the company “has made me physically and mentally ill due to bullying and made to feel different to other work colleagues ….”

Counsel acknowledged the “general requirement as set out in Conway v Ulster Bank “on exhausting the grievance procedure had been augmented by Employee v Employer at EAT in

Evidence of the Complainant:  by oath.

The Complainant gave evidence of the scope and range of his work, which was largely road based and occasionally meant that he got home late either 8pm, 10 pm or 11 pm

He pointed to June 2015, where he identified problems in Mr A, his line manager, behaviour, who, he stated adopted a negative and accusatory attitude towards him and directed some controversial statements to him which were unwelcome and directed at his comprehension of tasks given. The Complainant viewed his approach as unfair as he had accommodated the line manager when his wife was sick.

The work was unpredictable and during June 2015, a customer had threatened to shoot he and his colleague, but on reportage, no action was taken as Mr A had minimised the occurrence, saying that the sat nav had been incorrectly programmed.

Mr A was in the company 20 years by then and maintained a persistent accusatory approach to him. This continued into 2016, when in August 2016, Mr A reminded him that “I’m your boss, do what I tell you”.

By February 2017, the Complainant was supporting his wife who was taken to hospital, which worried him. He sought time off. Mr A insulted him when he came back in to help on the next working day.

The Complainant reported this occurrence onto Mr B who referred to Mr A, as a brilliant Manager.

Mr B arranged for the complainant and his family to have a break in Killarney as a gift.

Later on, the complainant took on the role of relief representative 13 hrs per week and was given an undertaking by Mr A that his expenses when be covered. Mr A reneged on this   when the Company Director refused to sanction.

The Complainant submitted that “he fought tooth and nail to become a Representative “He clarified this by stating that the position should have allowed for his automatic appointment in turn, but he had been overlooked and had been compelled to canvas for it.

Once appointed, in October 2017, he was approached by a colleague who directed him to do an after-work delivery and he queried it. Mr A dismissed his request for clarification, and he completed the run, only for the customer to say that she did not need the product.

In June 2018 on a work run to Kerry, Mr A pulled out his phone in the bar, where the complainant was present, which showed porn and he canvassed the attention of those present. The Complainant found this offensive.

The Respondent wanted him to adopt “a cold calling “practice in March 2019, He was nervous as he was not au fait with it. He took exception when Mr A remonstrated with him saying he ought to be more liked a named colleague, who in the complainant’s mind was not a shining example.

The Complainant knew that sales reps had a choice of car of jeep as their preferred work vehicle. Mr A denied him the choice and compelled him to have a van in replacement. The Complainant challenged this and reminded him of another comparable employee who was permitted a jeep.

An altercation with the transport manager followed, with Mr B taking his side and resulted in the transport manager being taken to a pub/ restaurant with his girlfriend to appease the matter.

The Complainant complained the occurrence to the Youghal Gardai.

Eventually, peace was restored, and the complainant did not pursue this complaint. He travelled back in the same van as the transport manager.

The Complainant felt his stress levels were rising as he saw that Mr B was protecting Mr A.

Eventually, in February 2020, following his Solicitors letter, his line of reporting was changed to Mr C.

The Complainant said that he had requested this previously but had been dissuaded on the basis that it would be embarrassing for a manager to be replaced / substituted.

The Complainant submitted that his return to work was impacted when.

 “He couldn’t put a foot right “

The Complainant recalled July 2020, when he suffered a migraine attack, and communicated this to Mr C around 10.30-11 am, who informed him that his health was more important. He proceeded on sick leave post medical review, before taking two days off.

Once he resumed work, the issue of delay in reportage was raised but not followed through. This concerned the complainant.

In June 2020, the complainant submitted that he had given a colleague, Ms Z €1,200 as an emergency loan for 6 weeks with full detail given to Mr B and C.

He was due back into the office on the next Monday but did not attend.

He was notified that “the lodgement slip “was missing and would have to be reported, if lost. It weighed heavily on him.

The Complainant contended that “the money” was the company way for pushing him “out the door “

Ms Z agreed with him that the money had been repaid, but she was not requested to attend the disciplinary hearing.

The complainant submitted that he had what he referred to as a “small breakdown, as I could not do it anymore “He described being in receipt of “heavy medication “

He had engaged in one counselling session, but nobody checked in with his welfare and he was sick of it. He had exhausted contact with three key managers, all of whom were involved in what was wrong.

His new work required a 7 am to 2pm work pattern and was much “healthier “

With regard to his Counsels inquiry on exhausting a grievance procedure, he replied “I went to everyone I thought I could but got nowhere “and the respondent was unreasonable.

During cross examination, He confirmed the details of his new employers from November 2021. He confirmed that he had not sought work before that date.

The complainant confirmed that he had gone to a senior manager at the business in June 2015 with concerns on Mr A. The Senior manager told him that he was incredulous and undertook to address Mr B. As he had addressed the matter with Mr A and B, he said there was no point.

The Killarney trip postdated that.

He submitted that he did not know anything about raising a grievance and there were no minutes.

He confirmed that the issue of the threatened shooting did not go higher than Mr A as he had blamed his colleague and him. He did not report it as nothing was going to happen.

He had tried to let matters go in terms of the negative remarks directed towards him, but as the Senior Manager D was aware of his treatment, he formed that view that he was wasting his time raising it further.

Senior Manager D told him he had to navigate the proper channels and work through Mr C

In relation to the March 2017 on expenses incident, the complainant contended that Mr A had not even tried to sanction the expenses through the senior Director, Mr R.

He countered that there was just no point to going to anyone about it as “nothing ever got done” and he was not taken seriously.

He was under the impression that Mr B was over Mr A in terms of governance.

The Complainant described the “Solicitors Letter “as the influencer for him to be taken seriously. He denied receiving multiple contacts from Mr C.

The Complainant, in responding to queries regarding the first occurrence of formal grievance, responded that he believed that speaking with Mr B should have been sufficient.

The Complainant told Ms Croisbie that he felt hated by Mr A and Mr B and added that securing customers was hard work for him and others, whereas “some lads acquired customers easily “

In referring to March 2020, the complainant confirmed that he had informed Mr B that he was being treated differently, but Mr B was more concerned about the “van “issue, which the complainant accepted was “kind of sorted out “

He had planned to return to work but was derailed by the matter of the missing lodgement, raised at the end of the meeting.

He accepted that he had met with Mr C. He said that he told Mr C that he could not find the lodgement form. He could not remember if he were prepared to sit down with Mr C to resolve the matter on September 8.

As the Respondent clarified that 1.5 years after first noticed, the lodgement slip was found electronically.

The complainant remonstrated in demanding “why didn’t anyone tell me? To which he was reminded that he had resigned.

The Complainant stated that he was “getting nowhere and was getting sicker and sicker “by November 20 and had not considered building bridges with the respondent. He contended that he felt anger and was bullied.

He said that his Dr advised him to attend to his mental health.

He cited his reasons for terminating his employment as having had enough, could not countenance a future, being beset by constant problems and having nobody of a professional standing to deal with.

He said that he had no choice but to resign.

When asked to reflect on what measures he had taken to avoid his own dismissal, he answered that he had stayed at the job for years.

During re-direct, the complainant confirmed he had addressed Mr C on the Kerry issue prior to raising it higher.

In answer to clarifications, the complainant said that he was aware of money management rules. He could not remember receiving a handbook. He had been interviewed by Mr T on the matter of the “missing lodgement “

He denied having depression or anxiety prior to 2017.

He was paid for 1.5 weeks sick leave.

The Complainant distinguished the styles of Mr A v Mr C saying the latter’s style was more relaxed and trustworthy.

The resignation came during a sick leave April to July 2021. When asked what prompted the resignation during this period, the complainant said that “he had had enough “

I asked the complainant to submit a table of loss and mitigation.

I requested the respondent to clarify the period of suspension as the papers suggested two periods of suspension, which was raised following the submission of the Solicitors letter.

At the resumed hearing on 24 April 2023, Counsel for the complainant, Mr Sreenan responded to the respondent concluding remarks and the decision not to put forward witnesses in the case.

Mr Sreenan submitted that he had no difficulty with that decision and requested that the Adjudicator draw inferences from the actions of the respondent. He added that the evidence already adduced in the case “must now be accepted “

In his own summary for his client, he emphasised that the respondent had not conducted an exit interview and the complainant was not found wanting at the audit stage.

In addressing the lack of grievance, he relied on UD 1274, 2010 which distinguished the facts in Conway. He submitted that a grievance can be excused when the situation reflects.

” An abysmal handling of the employment relationship with a catalogue of disrespect”.

He submitted that the respondent had not followed their own procedures and this crystallised when they did not alert the complainant to the resolution of the “money issue “

The complainant had successfully relaunched and was on course for promotion in his new work. The Complainant was visibly more animated on the resumed day of hearing.

CA-00046313-001 Organisation of Working Time Act, 1997

The Complainant case was that he was compelled to work in excess of 60 hours a week in the course of his work, without additional pay.

Counsel acknowledged the delay in time in submitting this complaint as in reality it was “the least of his worries “in the overall scheme of things he was trying to deal with. He contended that the facts of this complaint should be considered alongside the claim for constructive dismissal.

Counsel made an application to extend time on reasonable cause. He submitted that the reason for delay in submitting the complaint was caused by the respondent and the complainants mental health status.

CA-00046291-001   Claim for Constructive Dismissal

The Respondent has disputed the claim made for constructive dismissal. Ms Crosbie for the Company submitted that the complainant resigned voluntarily, and the Respondent had neither breached the complainants’ terms and conditions of employment, nor did it act unreasonably.

The Respondent sought that the claim be rejected.

Ms Crosbie introduced the company as a credit company selling ladies fashion, sportswear, gents’ fashion, hardware, and electrical equipment.

Preliminary Issue  

Ms. Crosbie, representative for the respondent opposed the application to postpone the hearing, saying they had no knowledge of the Circuit Court proceedings and were ready to go on the WRC claims, for which the respondent was on notice. She later clarified that the Respondents Insurer representative had been notified of circuit Court proceedings.

She submitted that she had three witnesses ready to present with a fourth witness expected on the next day of hearing. Ms. Crosbie submitted that the respondent would be prejudiced in the event that the case did not proceed.

Substantive Case:

Ms Crosbie outlined details of the grievance raised through the complainants Solicitor, dated 4 February 2020. The Respondent, through Mr A issued a copy of the company handbook and requested him to call to the office to discuss on his return from sick leave.

The parties met on 14 February and a detailed informal discussion ensued. The complainant attributed his work concerns to a “perceived hatred of him from Mr A and Mr B. The complainant, on reflection took some responsibility for the negative interaction with the transport manager, when he acknowledged that “he flew off the handle “

It was the company understanding that through a process of focussed engagement, the complainants’ issues were resolved. The Complainant returned to work on March 25, 2020.

On June 11, 2020, the complainant was found not to be at work, due to his wife’s illness, but there was no record of a reported sick leave.

On 30 July, the complainant reported migraine and intended to return to work post medical review. However, he did not give any feedback that day. The company were under the impression that the complainant had completed his run and were unaware that the collection had not been completed.

The parties met on 5 August 2020, Mr B, C, and the complainant, who refused representation.

The objective of the meeting was to discuss the absence leave policy and the missing lodgement.

The parties collaborated and made progress on the absence management part and a plan was made for a joint review by the complainant and Mr C of the lodgement issue. This was to be followed by Mr B and C’s consideration.

On 24 August 2020, Mr C concluded the Audit report and missing lodgement fact finding.

On 8 September 2020, Mr C emailed the complainant and invited him to attend a meeting that he agreed to on August 5 to address the missing lodgement. The Complainant was unwilling to attend, and the meeting was postponed due to the complainant’s sick leave.

The Respondent placed a special emphasis on this meeting occurring, but the complainant refrained, saying he wished to bring his solicitor or Trade Union.

The Company placed the complainant on two weeks suspension on 10 September 2020, while the missing lodgement issue was being investigated.

An investigation meeting occurred on 12 October 2020, where the complainant attended with a colleague.

On 16 October 2020, the Complainants Solicitor wrote regarding the Disciplinary issue. The Company set out their response dated 21 October 2020.

The Respondent intended on holding a disciplinary hearing and issued an invite to the complainant for 27 October 2020.

The Complainant, by then had commenced long term sick leave, which lasted into 2021.

On 17 February, the complainant contacted to seek an update on whether he was still being accused of stealing money and linked this to his mental health. He was due to return to work in early March and the respondent aimed to host the disciplinary meeting at that point.

On 18 February 2021, the respondent wrote to the complainant and indicated that a disciplinary hearing would follow his return to work in March 2021. The company clarified that the complainant had never been accused of theft.

Sick Certificates continued up until July 1, 2021. The Complainant resigned on April 15, 2021. This was queried by the respondent. The resignation was accepted on 16 April 2021 and WRC notification followed on 22 September 2021

The Respondent contended that the complainant terms as provided for in the contract of employment were honoured, without violation. No change occurred in the contract to make it “so radically different from what was before “Conway v Ulster Bank, 474/1981

The complainant cannot succeed on the contract test.

On the reasonableness test, Ms Crosbie submitted that the respondent had not acted unreasonably so as to render the relationship intolerable. She added that the complainant had not acted reasonably in resigning his position, particularly in respect of exercising internal grievance procedures.

Mc Cormack v Dunnes Stores UD 1421/2008

Ms Crosbie submitted that the complainant had not participated in the investigation procedure regarding the missing lodgement, which served as an obstacle to an early resolution.

She added that there was no accusation of theft against the complainant, however there was a missing lodgement, which ultimately was mislabelled by the complainant within his transaction history.

The Complainant had relied on the company grievance procedure in the past with the CEO, but on this occasion, refrained from activating a grievance regarding saving his job. Instead, the resignation was precipitous and without permitting the respondent an opportunity to resolve his points of contention.

In relying on Travers v MBNA Ireland ltd UD 720/2006, on failure to exhaust a company grievance procedure and thus not a constructive dismissal.

The Complainants actions in resignation did not meet the test for reasonableness. He had a “broken perception of events “and there were stark differences in both parties’ recollection of events.

At the resumed hearing on 24 April 2023, the Respondent was represented by Ms Lisa Maloney, who confirmed that the Respondent had exercised their choice not to give direct evidence in the case. She confirmed that no witnesses were being called by the Respondent.

The Respondent position was that they disagreed with the complainants account of events and were happy to conclude the case and await a decision.

Ms Maloney argued that the complainant had failed to reach the burden of proof for constructive dismissal. She contended that he was not faced with an unreasonable or intolerable workplace and the Respondent had adopted a best practice model.

The Complainant had not exhausted the grievance procedure. He had not been accused of theft, but rather a fact-finding exercise occurred.

The Respondent did not undertake an exit interview so as not to disturb the complainant on sick leave.

CA-00046313-001 Organisation of Working Time Act, 1997

The Responded was opposed to any grant of an extension in time in this case as the complainant had never submitted a grievance in relation to this matter during the course of his employment and he had not maintained a presence in the Workforce from

The scope of the claim is 20 March 2021 to 15 April 2021, during which the complainant was on sick leave and not working.

Ms Crosbie sought that the claim would fall.

Ms Maloney endorsed these statements on April 24, 2023, at the resumed hearing.

I requested the respondent to submit records of hours over one year. The respondent subsequently responded and recalled that the complainant had not worked during the cognisable period or indeed 12 months back from date of claim.

CA-00046291-001   Claim for Constructive Dismissal

Preliminary Issue:

I sought some clarifications from the parties and learned that the Circuit Court proceedings were predicted to take 18 months to come to the fore. There would be no opportunity to subtract any award I may make from that potential quantum. Separate reliefs prevailed as “best case “.

The case at WRC was lodged first in time.

Neither party presented the statement of claim on the Circuit Court case.

I declined to grant the application to adjourn the matter before me.

I explained that I had not been asked to decide whether both cases could co-exist, Culkin v Sligo County Council at Court of Appeal

But rather, whether I could safely navigate through the claims before me.? I explained that the Unfair Dismissal Act, 1977 does not provide a forum for addressing bullying and harassment, and is driven by the remedies of re-instatement, re-engagement, or financial loss /compensation.

I explained that I wanted to adopt a pragmatic and equitable approach, mindful that the claims at WRC, came first in time.

I confirmed that I was prepared to work with the parties to safely navigate the facts arising from the Unfair dismissal claim and the claim under the Organisation of Working Time Act, 1997, alone.

Both Parties accepted this outcome. The case proceeded to the substantive case.

Substantive Case:

I have been requested to arrive at a decision in this claim for constructive dismissal which was communicated by the complainant by email on    15 April 2021 and accepted by the Respondent on the following day.

In reaching this decision, I have had regard for both parties submitted written submissions, the table of loss and the uncontested evidence of the complainant.

I have already dealt with the preliminary issue in the matter of active parallel proceedings and my decision communicated to the parties to press on in a careful navigation of the legal and factual merits of the case through both statutes under my jurisdiction.

On receipt of the respondent written outline submission of the case, it was very apparent that they intended on mounting a robust defence.

Nothing could have prepared me for receiving a notification dated March 20, 2023, from the respondent which sought to explain that the company would not be presenting witnesses in the case. I canvassed the complainant’s response to this, but none was forthcoming prior to the resumed hearing.

At this point, I am mindful of the “A Fair Trial “chapter in Tom Bingham’s’ Rule of Law “

The fair trial of a civil action is now held to require parties to reveal their respective cases and almost all material relevant to them before the trial even begins. The policy of the law is that litigation should be conducted with the cards face up on the table. This is achieved first, by requiring the complainant to set out in writing in some detail the grounds on which he claims. He cannot appear at trial and present a case different from that which he has advanced in writing. The defendant, in turn must set out in some detail in writing the grounds on which he resists the claim. He cannot simply deny the claim and leave the complainant and the judge wondering what his defence is. Nor can he appear at trial and advance a defence different from that indicated. Thus, the line of battle should be drawn with some precision before thew first shot is fired in court.

Bingham then emphasises the importance of shared documents on which they intend to rely on.

He goes on:

Nowadays, in contrast with practice in the past, the parties are required, thirdly to exchange in advance the statements of the witnesses they propose to call. The days of the mystery witness, unexpectedly called at the eleventh hour to reveal all, are a thing of the past, a great loss to television drama but a great gain for justice. A party cannot lie low and ambush his opponent.

As I have stated, the Respondents first words in the case both written and oral were built on a strong defence and were accompanied by the introduction of 3 to 4 Managers of the Respondent business as witnesses. In fact, I requested a full day in resumption to accommodate this cadre.

I have reflected on this volte face or flip flop approach by the Respondent who failed to offer any reason for the inconsistent approach.

I appreciate that both parties are entitled to prepare legal strategies in their client’s best interests.

I understand that the Complainant was untroubled by the approach adopted by the respondent and submitted that the complainants own evidence stood uncontested as a result of the vacuum of respondent witnesses.

For my part, I found the volte face was disrespectful to the Statutory Tribunal of the WRC. Both parties were invited to be heard in line with natural justice and fair procedures. Written documents alone are not probative. Neither party had made an application for the case to be decided on the papers alone.

As both parties are aware, oral evidence is the best evidence available.

In this particular case of a claim for Constructive Dismissal, I look to Berber v Dunnes Stores at the Supreme Court, [2009] 20 ELR 61, which directs an analysis of both party’s conduct.

 In determining whether there has been a breach of the implied terms of mutual trust and confidence in employment contracts

1 the test is objective.

2 the test requires that the conduct of both the employer and the employee be considered.

3 the conduct of the parties as a whole and the cumulative effect must be looked at.

4 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.

By the respondent witnesses silence on the factual matters in the case, I am left wondering what really occurred in this case? I am also left wondering why the Respondent witnesses, decided to save their oral account for the Higher Court and failed to engage with the instant claims before a Stautory Tribunal.

This was completely at odds with their robust defence opened on the first day of hearing and a worrying development, when I consider the salutary remarks by the now Chief Justice in Zalewski, once more at the Supreme Court in April 2021

The fact that the decision of the W.R.C can be described accurately as a determination is of importance here. The State acknowledges that it is, moreover, a “determination of…civil rights and obligations” to which Article 6 of the E.C.H.R. applies. Determination here connotes decision-making which is definitive. It is the decision of the W.R.C. which is decisive of the legal rights of the parties.

It is clear to me that the respondent made a conscious decision to withdraw their witnesses following the first day of hearing. The Respondent did not give a reason for this action.

I am left to consider the complainants evidence in chief, cross examination and clarifications, side by side with the oral and written submissions. This is far from ideal and completely inconsistent with the clear statement of preparedness to proceed in the case during the first day of hearing.

A claim at WRC should never be viewed as a dress rehearsal for a planned action at the Higher Courts. I have interpreted the bashfulness of the respondent witnesses, so eager to speak on day one to a complete absence and silence on day two to be an unhelpful approach.

I appreciate that the respondent witnesses were expected to be subject to the provisions of section 8(14) of the Act at hearing, just as the Complainant had been.

The resumed hearing was due to open with an invitation to the respondent witnesses to give evidence and the parties were both advised of my intended approach in that regards.

(14) (a) An adjudication officer may require a person giving evidence in proceedings under this section to give such evidence on oath or affirmation and, for that purpose, cause to be administered an oath or affirmation to such person.

(b) A person who, in or for the purpose of proceedings under this section, gives a statement material in the proceedings while lawfully sworn as a witness that is false and that he or she knows to be false shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months, or both, and

(ii) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 10 years, or both

A witness in this case was expected to take the oath or affirmation.

It is of note that the Respondent business is highly regulated through the European Credit Directive and Codes of Practice.

I will leave this matter sit now and press on with my findings in the substantive case of the claim for Constructive dismissal. I would have much preferred to have heard from the respondent witnesses.

The law in Constructive Dismissal is set out in section 1(b) of the Unfair Dismissals Act, 1977.

b) 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,

The Complainant is charged with satisfying the burden of proof, based on the balance of probabilities on whether he was entitled to resign based on the conduct of his employerWestern Excavating (ECC) ltd v Sharp [1978] IRL 332 or whether the decision to resign was reasonable?

It is imperative that I consider the conduct of both parties. Berber, applied in reaching my decision.

I have been requested to consider the circumstances advanced by the complainant that he was compelled to leave his employment on 15 April 2021, which occurred during a period of certified sick leave expected to run for another two months. In fact, the medical report dated June 3, 2021, places the complainant on leave from work and did not capture the circumstances of resignation 2 months prior.

As in Berber, the complainant had a history of migraine, anxiety and depression and was managed on anti-depressants prior to his first bringing his unease with work to the attention of his GP in September 2019. In Berber, the complainant referred to a pre -existing Crohn’s disease which he submitted was exacerbated by his interactions with his employer. So too, the complainant maintained an exacerbation followed in his mental health in this case. I could not establish what note, if any the respondent made of these pre -existing conditions so as to gauge the submitted exacerbation. No request was made for external Occupational Health advice.

During his direct evidence, I found that the complainant had poor recall, particularly in relation to having received a staff handbook and he had no idea of what a grievance was. He did not exhibit an awareness that he may have made an agreement with the company on how he was going to proceed at the company. He accepted that the “van issue “was “kind of resolved “

He did not equate the gesture of a family trip to Killarney as a gesture of resolution by the company.

The Complainant chronicled a montage of interpersonal conflicts with Mr A and latterly Mr B from 2015 and communicated a certain peace of mind on the appointment of Mr C as his replacement manager in February 2020.

I cannot establish any sort of con joint or ex parte attempt at conflict resolution through a procedural pathway from 2015 to February 2020, when the Solicitors letter was filed by the complainants Solicitor. I appreciate that the complainant spoke to senior managers about Mr as behaviour towards him, but there are no records of active or constructive engagement on the topic.

I am satisfied that there was an organisational awareness of the discord between the complainant and his Manager, Mr A from 2017 onwards, but this awareness did not prompt remedial action through the commensurate duty of care of the respondent towards the complainant.

This brings my focus to the Solicitors letter of 4 February 2020. This was a stark read. I find that the Respondent gave insufficient weighting to this letter, outside of a change of the guard of line manager to Mr C, whom the complainant placed in a trustworthy category.

The complainant has requested that I consider his plight from 2015 onwards and through the prism of two vastly different contracts of employment, the first of which mentions the presence of a personnel Manager, whom I have not met.

From a careful consideration of the complainant’s evidence, I found a frail employee, who was clearly struggling with his work for a long time.

I can see that he took offence when the Operations Manger asked him why he persisted at work when so troubled. I can see that he struggled further when Mr C reminded him that his health should be prioritised.

I found that the complainant took refuge in sick leave when the company sought to formalise a management strategy in response to the Solicitors letter of February 2020. I appreciate that there was a covid related absence which covered a period to June 2020, however, I note that the complainant did engage on the topic of the van which was recorded in the respondent papers as resolved.

Throughout his recall of this period, I found the complainant vague and very unsettled in his evidence. The Complainant preferred to present himself as an object of detestation by Mr A and B which seems to weigh heavy on him. He took things very very personally.

However, everything changed for him when in Autumn 2020, the respondent sought to chase a missing lodgement and tagged it onto a concern around the operation of his “round “or “run “

Up to this, I found that the Respondent appeared at least from the documents to want to address a problem in the complainant’s employment relationship.

What I am troubled by is there is no sign of their recourse to their own tools of resolution provided in their policies. Instead, matter rested on an informal curb without formal resolution.

I accept that the complainant did not trigger a grievance of his own. However, I find that the chronicles presented in the sequential solicitors’ letters should have left the respondent in no doubt that they were presiding over a red alert in the complainant’s employment.

Deputy Chair of the Labour Court, Tom Geraghty, in considering the case a claim by a Ware Manager for constructive Dismissal on foot of a 7-year employment history in

TE Laboratories ltd v Jakub Mikolajczyk in UDD 1930, where first the complainant was interviewed as a witness before being placed at the centre of a disciplinary process with a perceived unfair outcome.

The Court drew from Beglan v Scanomet Ireland ltd UD 688/2012, where a complainant had no means of dealing internally on his grievance resulted in a successful finding of constructive dismissal.

It is clear to me and endorsed in the Solicitors letter that the complainant had access to activating a grievance at the respondent business. I accept that he advanced an informal grievance.

Given that his issues stemmed from the interpersonal relations with his managers, it may have been wiser for the respondent to call on an external person to manage the grievance in line with their procedures.

I recall the case of Connie May v Moog ltd [2002] 13 ELR 261, which carried an interesting dissenting opinion. This case applied an “exceptional circumstance “of health to the failure to action a grievance which was found not to be fatal to the claim for constructive dismissal

While the complainant cited bullying and harassment in his email of resignation as a part reason for resignation, He supplemented this in his uncontroverted evidence.

 I am clear that he did not formulate a complaint under this policy during his employment tenure. Instead, I am clear that he had flagged his unease on the way he was treated on a number of occasions and was not heard. I am also clear that the Solicitor placed the respondent on notice of bullying and harassment, which was then denied by them without a suggestion of resolution through mediation or investigation in line with the Code of Practice and the company’s own procedures.

However, where I have found a pronounced fault line in the circumstances in this case is surrounding the issue referred to as a “missing lodgement “and the management of same.

I find that the complainant was committed to relaunching his employment relationship until this matter raised its head and coupled as it was with a reference to an audit.

Having read the cash handling policy provided by the respondent, I found sufficient scope within that policy to resolve this matter between the parties.

Instead, in a very short period, September to October 2020, the matter was escalated to a “federal case “where the complainant was suspended twice during his sick leave and where an investigation into a missing lodgement took one day. October 12-13, 2020, at which time, the complainant was invited to a disciplinary hearing without being furnished with an investigation outcome, as far as I could determine.

From the complainants uncontroverted evidence, he equipped the respondent with the link to Ms Zs float as the basis for the transfer of the cash and was not heard. In what appeared to me to be a strongly paternalistic employer, no visible efforts were made to diffuse the controversy on what happened to the cash transferred to Ms Z.

I found two suspensions applied to the complainant during sick leave followed by a direction to attend a disciplinary hearing as contingent to his return to work to be wholly excessive and unreasonable. The actions flew in the face of Noonan Js pronouncements in Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241 were suspension.

“Ought to be seen as a measure designed to facilitate the proper conduct of the investigation “

By coupling the concern about the missing lodgement alongside an audit outcome and superimposing these on an employee out on medically advised sick leave, I found the respondent acted unreasonably and severed an already extremely frail employment relationship. The employment relationship subsisted on life support from that day forward.

By placing a disciplinary hearing as an obligatory pre cursor to the complainants return to work demonstrated a complete disregard for the complainant’s welfare. The respondent acted unreasonably in failing to “demonstrate any concern or consideration for the state of his health “May.

I found that the complainants’ interactions by email regarding accessing a vehicle during Christmas 2020 to be strange.

I found his emails around Christmas time to Mr B to be rude and disrespectful and were not explained away in his evidence.

I turn now to the resignation, which was accepted without any real inquiry or probing by the Respondents Mr B.

I cannot accept that the eventual reconciliation of the missing lodgement was not shared with the complainant. I cannot accept the respondent submissions that this arose from a respect for the complainant’s sick leave.

I accept Counsels submissions that nobody undertook an exit interview with the complainant as detailed in the employment contract.

Taking everything into consideration, I have found that a dysfunctional employment relationship existed between the complainant and his employer from 2017 onwards, it was remedied when he became a supervisor.

It may have been beneficial if the parties had engaged on this pronounced difficulty before the Solicitors letter of February 2020.

I appreciate that the respondent understood that they applied a few “sweeteners “as appeasements from the disagreements and arguments, but the complainant had no awareness that these amounted to lines in the sand and served as conclusions.

Instead, he appears to have retained a strong sense of exclusion that was not validated by any procedural pathways and so remained a fixed belief for him, which was eventually contested but not examined by the respondent.

By replacing the line manager from Mr, A to Mr C, the respondent did take a measured approach to the duty of care expected of them, however Mr C and Mr B then led the extremely flawed disciplinary process which severed the employment relationship of trust and confidence.

I would have much preferred if someone at the Respondent employment had met with the Complainant following his resignation which was tendered after close of business on 15 April 2021 and accepted less than 24 hours later.

I have found that the complainant unduly delayed in formalising his concerns regarding his working life. However, the Solicitors letter placed the Respondent on notice of a “red alert “situation, which was dealt with in a lack lustre manner.

However, the management of the “missing lodgement “issue unfairly coupled with performance issues rang the death knell on this employment relationship.

By then the complainant had been medically advised to consider leaving the employment and these events October to February 2021 compounded his frailty and capacity to return to the work force.

The Respondent failed in their duty of care to the complainant and caused the chasm existent in the employment for him to widen to unbridgeable level.

I asked the complainant why he felt that he had to resign during a period of medically advised sick leave? He told me that he had had enough and that he was only paid for 1.5 weeks sick leave. This is at variance with the company policy.

This is a case, where I find I can excuse the complainants lack of reliance on an actual grievance as the Solicitors letters placed the respondent on clear notice of the intensity of the wrongs live in the employment relationship.

I find that the Respondent refused to be bound by their own procedures in the Disciplinary Policy, Cash Handling Policy, and in the manner in which the complainant was suspended twice during his sick leave.

By making his attendance at a disciplinary hearing contingent on his return to work in effect created a climate of a “no way in or out “and culminated in the complainant’s forced resignation on 15 April 2021.

I will add at this point that the complainant would have benefitted from representation during his troubles with this company and his choice of bringing the compliance officer to the investigation on 12 October 2020 seemed illogical when he had told the company he intended to bring a Union representative.

In all the circumstances of this case, I find that the complainant was entitled to consider himself dismissed on the respondent’s unreasonable conduct towards him. He was equally entitled to consider himself dismissed on the contract test.

I have found that the respondent has fallen far short of best practice in how they addressed this case both at the employment and at this Inquiry.

I conclude the case by finding that the complainant was unfairly dismissed through constructive dismissal.

He has satisfied the burden of proof required.

CA-00046313-001 Organisation of Working Time Act, 1997

The Complainant has submitted that section 15 of the Act has been breached when he was required to have worked a 60-hr week.

My jurisdiction comes under section 15 of the Act.

Weekly working hours.

15.— (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, which is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

The Complainant has applied to extend the time limit under section 41(8) of the Workplace Relations Act, 2015, by asking for an extension of time to 12 months to capture work activity.

The Respondent has rightly argued that the complainant did not enter a work presence after September 2020 and before his resignation in April 2021.

I have found that this claim is out of time and cannot be saved by an extension of time.

The claim is statute barred.

CA-00046313-001 Organisation of Working Time Act, 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with section 15 of that Act.

This claim is out of time and thus statute barred.

CA-00046291-001   Claim for Constructive Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant was constructively dismissed. There are no circumstances where I could countenance an exploration of re-engagement of re-instatement to this failed employment. Compensation is the sole practical redress.

The Complainant delayed in mitigating his loss to November 2021 and was in receipt of illness benefit for an extended period to January 2022.

However, I am of the view that the poor handling of the employment relationship by the respondent and their failure to manage the parallel sick leave with some empathy magnified the negative impact of the latter months of the complainant’s employment on him, which endured post his dismissal.

I order the Respondent to pay the complainant €24,900 in compensation to take account of the complainants actual and prospective loss. This sum incorporates the wage differential in the new work and the loss of pay through sick leave.

I would also recommend that the respondent consider invoking a policy on the management of sick leave, which incorporates payment of sick leave during annual leave according to statute and EU case law.

Claim for Constructive Dismissal, Excessive working hours.