ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045822
Parties:
| Complainant | Respondent |
Parties | Michael Murphy | Paradigm Plastics Ltd T/A Future Plastics |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | Aaron Shearer, BL Instructed by James Allen & Co | Paul McGlynn, HRS Consultants |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00056567-001 | 10/05/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00056567-002 | 10/05/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00056567-003 | 10/05/2023 |
Date of Adjudication Hearing: 05/10/2023
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.
The complainant was represented by Aaron Shearer, BL, instructed by James Allen & Co and the respondent was represented by Paul McGlynn, HRS Consultants. Mr Padraig Shine, General Manager, gave evidence on behalf of the respondent.
Background:
The complainant was employed by the respondent from 26/02/2009 until he was dismissed on 12/12/2022. The complainant believes that he was constructively dismissed. His gross weekly wage was €1,328.92 (€1,002.06) net). The respondent denies that the complainant was constructively dismissed and state that he failed to engage with the respondent in relation to changes to his role. The respondent also submits that his complaint should fail as he failed to adequately mitigate his loss. The complainant submitted his complaints to the WRC on 10/05/2023
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Summary of Complainant’s Case:
At the outset of the hearing the complainant’s representative raised two matters. The first was in relation to the role of the respondent’s representative at the hearing. As this was the same HR consultant who was asked to meet with the complainant it was important that there was clarity in relation to his role at the hearing. The second issue was in relation to the inclusion of a document in the respondent’s written submission which was a letter sent by the complainant’s solicitor to the respondent and was clearly marked “Strictly Without Prejudice”. The complainant’s representative described the inclusion of a without prejudice document as “remarkable” and not in keeping with the without prejudice rule in relation to such documents. The complainant was employed as the Engineering Manager with the respondent from 26/02/2009 until 12/12/2002. He was paid a gross weekly wage of €1,328.92 (€1,002.06 net). His remuneration package also included other benefits including employer contribution to pension, annual bonus, Diesel Card, Mobile phone, Income protection, Death in Service and Life insurance. The complainant resigned from his employment on 12/12/2002 following a significant history whereby the respondent forced the complainant to resign. This was a repudiatory breach of the complainant’s contract of employment. The complainant gave evidence on affirmation. He commenced working for the respondent in February 2009 as Quality Manager and was promoted to Engineering Manager in 2014. His role involved dealing with initial queries to getting the product completed. He gave an example of the kind of products that they made. One was the supply of parts for an aircraft seat. His role was to analyse the request and make sure that it could be made in line with the specifications. He had four people reporting to him. Towards the end of his employment, he was the only person in the engineering department as others were moved to manufacturing. The total number of employees in the business was about 40 and this involved various roles. The complainant was asked when Mr Padraig Shine, General Manager, got involved. He outlined that Mr Shine was involved in various consultancy roles and he became more involved when the respondent moved to Navan in 2019. The complainant gave evidence that Mr Shine was promoted to Production Manager, and he interfered in his team when he was off-site. His team would regularly ask if he could keep Mr Shine away from them as he wanted to change their roles. The complainant was asked about the complaint he submitted in May 2022. He confirmed that he sent this to the Operational Excellence Manager (Mr A) as he was appointed a Director. His complaint was about Mr Shine and the manner in which he would call him to his office and talk down to him. He also tried to change his role. His complaint was about the issues with Mr Shine and about the company van he was supplied with. This van was crashed by a colleague, and he eventually got a replacement van which was not fit for purpose. He didn’t feel safe in it, and he used his family car. The van broke down and Mr Shine picked him up. At that stage Mr Shine agreed that he could work from home. He then got a call from the office to say that the van was now ready. He got another phone call from Mr Shine who told him that he should be in the office in the morning. The complainant confirmed that he told Mr A about his dealings with Mr Shine in January 2022and that he did not want any more dealings with him. Mr A agreed that what was happening was unacceptable. The complainant gave further evidence that he had a second conversation with this manager who said that he would do something about it, but nothing changed. The complainant also gave evidence of a meeting he had with Mr Shine on 16/02/2022 in advance of a staff meeting. This took place in the respondent’s board room and Mr Shine gave some details of his proposed plans to change the complainant’s role. There was no agreement, and it was agreed to revisit the matter. The complainant outlined that a staff meeting followed on and Mr Shine proceeded to announce the changes, and these would fundamentally change the complainant’s role and standing within the company. The changes outlined by Mr Shine involved the setting up of a new department, New Product Introductory (NPI) and the new lead for this team would be Mr B. The complainant felt that this was his role and the NPI was going to be doing the work that he was already doing. The complainant was not asked to apply for the new role, and he had no awareness that it was being created until it came up. The complainant gave evidence that the first he heard of this new department was when he was told about it by Mr Shine. The complainant stated that he told Mr Shine that this was in fact his role and it was agreed to discuss it at a later date. The complainant confirmed his understanding was that this matter was to be discussed further and nothing was finalised. However, at the subsequent staff meeting Mr Shine told the meeting about the new department that was being set up and it was to be headed by Mr B and the two people who reported to the complainant would be reporting to Mr B. The complainant gave evidence that he spoke at the meeting and said to Mr Shine that we had more things to discuss. Staff were asking about his role. The complainant had no idea where this left him in the company. The complainant gave further evidence that was invited to a meeting on 01/03/2022 and the invite which was sent to him on 25/02/2022 was redirected to his junk e mail. On the morning of the meeting the respondent’s HR Consultant, Mr Paul McGlynn, came in and looked at him before going to Mr Shine’s office. Mr Shine told the complainant that the HR consultant was looking for him and told him to go to the meeting room. Mr Shine gave him no details of what the meeting was about. When he attended the meeting with Mr McGlynn, he asked him what the meeting was about. Mr McGlynn asked him if he was happy to attend the meeting on his own and that he would not go into the details of the meeting unless the complainant signed a form. Mr McGlynn asked him on several occasions to sign but he did not sign it. The complainant gave evidence that the meeting lasted about 45 minutes and he was not told anything. Mr McGlynn said that he had spoken to Mr Shine. The complainant told Mr McGlynn that he was looking for assistance from HR and Mr McGlynn told him that he was representing the company. The complainant gave evidence that he spoke to his wife after the meeting and remained at work. He just wanted to get on with his work. Mr Shine asked him to deliver a product to a company and he went home after that. The complainant stated that he did not know what to do and he had previously attended his GP in January because of the issues in work which resulted in chest pains. The complainant then gave evidence that he attended the Emergency Department on 08/03/2022 and was suffering from work related stress. The complainant was asked what his view was of the respondent’s submission that his sick leave at this time was part of his plan. The complainant stated that he was shocked at that suggestion. He had endured a lot of difficulties in the last 18 months. In January his GP wanted him to take two weeks off and he didn’t as he felt that Mr Shine would make this known. The complainant also gave evidence about his previous sick leave. The complainant confirmed that he always got paid when he was out sick previously. He was told that he was part of the management team, and he would be paid. On this occasion he received no pay, and this was the first time that this occurred. He did query this with Mr A, but he did not receive a reply and his query was ignored. The complainant also stated that he asked Mr A and Mr Shine about the income protection policy, but he got no response. He subsequently got details of this scheme and is currently progressing a retrospective application. The complainant gave evidence that he was in receipt of illness benefit and he received €420 per week. When working he was taking home €1,002 per week. The complainant give evidence of the effect of this on him. He had to use his savings to pay for his mortgage and the respondent took back his van. The complainant stated that he put in a formal grievance about Mr Shine in May 2022. He confirmed that he was never asked if he was able to engage in a process to hear this grievance and he also confirmed that the respondent was aware that this grievance needed to be resolved before he could return to work. The complainant confirmed that he then engaged a solicitor to assist him with the difficulties he had with the respondent. His solicitor confirmed to the respondent that he wished to have the grievances dealt with before resuming work. The complainant gave evidence that he participated in a meeting with the respondent’s occupational health physician. He understood that the purpose of this consultation was to assess whether or not he could participate in the grievance process. The outcome of the consultation was that he was deemed fit to participate in an investigation. The complainant gave evidence that he was not contacted by the respondent after this to progress his grievance. The complainant was asked what he thought about the six-month delay by the respondent in not dealing with his grievance. He stated that they were trying to starve him out. There was an investigation proposed by the respondent wanted to use the HR Consultant who previously met him in relation to the at-risk meeting and who told him that he was representing the company. He does not think it was right to ask this person to investigate his grievance. The complainant was then asked about his decision to resign, and he said that he wanted to get on with his life. The complainant was then read a paragraph from the respondent’s written submission and asked for his response. The quote was: “It is difficult to understand given that he worked in the company how he thought that this would assist in a resolution, in fact, it is clear the last thing he wanted was a resolution which would not provide a big pay out and it seemed that the company were destined to be in the WRC, the Labour Court and possible the civil courts and if he were to succeed in getting even 10% of what he wanted the company would not survive. It seems the claimant cares less if the people he worked with continue in employment as long as he gets a pay-out. Whatever alleged stress he may have suffered there was nothing wrong with his vision, his goal, his objective and his initiative in extracting a big payday regardless of the consequences for anyone else”. The complainant described these remarks as “ridiculous and hurtful”. He said that this was disgraceful, and he was not happy to read that. The respondent had no regard for him even though he worked for them for 13 years. The complainant said that he didn’t want to have to resign, and he wanted his job. It was put to the complainant that the substance of the respondent’s position was that he failed to engage in a consultation process. The complainant stated that this was so untrue. He did not want to be in the Emergency Department on 08/03/2022 and the reason he was there was as a result of what happened in work. The complainant gave evidence that he got a job about two weeks ago as a design and project manager. This is a three-month fixed term contract and there is no indication of any potential extension. The complainant also gave evidence in relation to the difficulties he had in getting a job. He had interviews but he lost a lot of confidence due to what happened. The complainant also gave evidence in relation to the difference in salary. His current salary is based on an annual salary of €60,000. In his previous role taking into account bonus and other benefits Mr A confirmed to him that his salary would be in the region of €88,000. The complainant was asked to outline his complaint in relation to the terms and conditions of employment. He stated that he was not being paid while on sick leave and this was not included in the contract. The complainant was cross examined by the complainant’s representative. He confirmed details of his early years in the company and his promotion from Senior Designer to Quality Manager and in 2014 as Engineering Manager. The complainant explained the difference in roles and in the last role he was involved in a more engineering-based role and working to higher standards. As the Engineering Manager he ran all NCI through the company. It was put to the complainant that there was no significant change to his role. He disagreed and stated that the standard changed, and they hired a Softworks specialist, and he was overseeing this person. It was put to the complainant that the respondent will give evidence that his role did not change but he got a pay rise, and he did not sign up to any new terms and conditions of employment or agree to KPI’s. The complainant stated that he signed documents for HR purposes. The complainant was asked if he agreed that the company went through business challenges. He stated that they did, and he worked for them for 13 years. It was put to the complainant that he was the person responsible for Health and Safety matters in relation to the company van. He was asked if the vehicle had a valid NCT. The complainant said that he never saw any document and the van was the property of the company. He was asked about the replacement van, and he stated that a colleague crashed the van on 10/11 November and the replacement van broke down on 27 January. It was put to the complainant that it was reasonable for the company to provide him with a replacement, and he stated that the provision of a van was part of his contract of employment. The complainant was asked if he was aware that the cost of the van was €750.00 per week, and he replied that he was not aware of this. It was put to the complainant that he felt that he was being bullied and spoke to Mr A twice, but he did not use the company procedures. The complainant stated that if he knew the way things were going to turn out he would do things differently in hindsight. It was put to the complainant that he did not use the policy and he stated that he made the company aware that he needed people replaced and he told Mr A on two occasions that he wanted to report bullying issues. It was then put to the complainant that he had difficulty regarding who he should report to, and he did not want to report to Mr Shine and in that context the bullying could be the other way around. The complainant stated that that was “100% false and a complete lie”. The complainant was asked if he had people reporting to him and he confirmed that he had. He was asked what he would do if they reported any issues to him. He stated that he would listen, talk, and support them and involve HR people if necessary but during his employment with the respondent he never had to bring any issue to HR. The complainant stated that two of his colleagues had discussed issues they had with Mr Shine but then did to want to take it further. When one of those colleagues was thinking of leaving Mr Shine asked him to negotiate with his colleague and see what it would take to make him stay. He passed details of this to Mr Shine but as the colleague did not want any dealings with Mr Shine, he confirmed that would definitely leave the company. It was put to the complainant that he did not follow any grievance procedure as he felt that there was no substance to his grievance. The complainant stated that that was not the case. He went to the Doctor as a result of what was happening, and he confirmed what he was undergoing. The complainant was asked about the consultation meeting he had, and he confirmed that the respondent’s representative at that meeting, Mr McGlynn told him that he didn’t need a solicitor. The complainant stated that he had no option but to consult with a solicitor. The meeting did not proceed as the complainant confirmed that he would not sign a waiver that was presented to him. The complainant confirmed that no meeting took place unless he signed the waiver. It was put to the complainant that he went out on sick leave after the meeting. He confirmed that he was very upset by the meeting, and he rang his wife to discuss it. He attended the Emergency Department on the Tuesday and the complainant confirmed that it was determined that the issues he was experiencing were deemed to be work related. The complainant was asked when he informed the respondent that he was on sick leave. He confirmed that he sent a text message to Mr Shine when he was in the Emergency Department. It was put to the complainant that while he was out sick, he could not be asked to attend any meeting and he confirmed that was correct. The complainant confirmed that he attended his own GP subsequently. The complainant was asked how many weeks leave he was given by Mr Shine when he had a family bereavement. The complainant confirmed that it was one week. He also got other time off for another bereavement on a previous occasion. The complainant was asked if he was aware that his legal representative sent an e mail to the respondent which put restrictions on his grievance. The complainant stated any correspondence sent was shown to him and he was happy with its contents. The complainant stated that he could not see how Mr McGlynn could act in an independent manner in relation to hearing his grievance when he had previously confirmed to the complainant that he was representing the company. The complainant confirmed that his letter of resignation was sent on 12/12/2022 and that the HR Consultants letter dated 13/12/2022 outlined that they had sourced an independent HR Professional, but this person was not available until January 2023. The complainant was asked when he started looking for work and he stated that he was actively looking for work including contacting people he knew. In a closing submission on behalf of the complainant Mr Shearer, BL outlined that there were two critical tests. The contract test and the conduct test. In relation to the contract test it is clear from the respondent’s written submission that trust was abandoned prior the resignation of the complainant on 12th December 2022. The complainant’s contract of employment states that any grievance should be dealt with expeditiously and with undue delay. There was no basis for the grievance not to be dealt with other than to starve the complainant. In addition to this the respondent did not pay him sick pay, did not tell him about the income protection policy and removal of the company van before he went on sick leave. In relation to the conduct test, it is clear that Mr Shine, “with effort and enthusiasm” tried to change the complainant’s role. The meetings in March were set up as at risk of redundancy meetings. The company has produced written evidence that they contemplated redundancy. Mr Shine gave evidence that they wished the complainant to stay on and this should be treated with incredulity. The conduct of the respondent was a unilateral breach of the complainant’s contract of employment. |
Summary of Respondent’s Case:
The complainant worked for the respondent since 2009 and had the role of Engineering Manager. Following a difficult period during COVID-19 the company were making some changes to the engineering section. The complainant was invited to a consultation meeting in March 2022. While there was a risk to his role no decision was taken in relation before the complainant went on sick leave. The respondent takes all complaints seriously and the complainant never made a complaint before he left on the same day as the company wanted to hold an initial consultation meeting with him. The respondent also submits that the complainant subsequently raised a grievance through the grievance procedure. The respondent believes that the complainant has valuable skills that are required and valued by the company. While his position may have been at risk it is difficult to see how a reasonable alternative could not have been found if the complainant had engaged in the process. The failure to engage by the complainant must be deemed to be unreasonable and unfair similar to if the respondent failed to engage in a consultation process. The respondent submits that the complainant never attended any consultation meetings, and it is the respondent’s position that the complainant “saw this as an opportunity to extort as much money as possible from the company”. The respondent believes that when the complainant learned that they wanted to commence a consultation process he went on sick leave. The respondent submits that the complainant tried to “circumnavigate the process and try to set up an employer with an expensive claim “and this “is wrong and must fail in the same way as an employer who failed to follow procedures and terminated employment would fail”. It is the respondent’s submission that “We will show that the failure to engage in the consultation process which is serious in its own right and on its own would be fatal to his case, the calculated moves that were to come will show that the claimant was operating at an optimal level to try and work himself into a situation that would provide a big pay out”. The respondent also believes that they were being pressurised to investigate the complainant’s grievance while he was on certified sick leave. It is the respondent’s position that if they did proceed while the complainant was on sick leave “there is no doubt that he would now claim that the employer added to his stress by conducting an investigation while he was out sick. The employer failed to fall into this trap to the frustration of the claimant”. The complainant was sent to the occupational health physician and the report indicated that he was fit to attend an investigation meeting but that he should also be able to return to work once the investigation concluded. The respondent submitted that “it seems from the claimant’s perspective that the best thing to do was to frustrate, delay the process and watch for the best time to resign and take a case against the company. The respondent was surprised with the [Occupational Health] report in some of the content was in conflict with other information that the company had”. The respondent submitted that the respondent wished to investigate the complainant’s grievance following this report, but the complainant’s solicitor indicated that the respondent’s HR consultant would not be acceptable to the complainant. The respondent only received one response to its request looking for an alternative HR consultant and this person was not available until January 2023. The complainant’s solicitor submitted a letter of resignation on 22/12/2022 and upon confirmation of this resignation on 20/01/2023 the respondent accepted the resignation. The respondent believes that “the claimant was never going to allow the situation to get to the point where the complaint he made could be independently investigated. We believe the reasons for this is that the claimant did not believe that any independent investigation would determine that there was substance to his complaint”. The respondent also believes that the WRC should not be the first resort in resolving employment disputes and notes that they contacted the complainant’s solicitors to establish what loss he was claiming and also to provide details of his efforts to mitigate his loss. It is the respondent’s view “That this basic requirement was not met, and it seems that compliance with this might upset the litigious objectives of the claimant”. Mr Padraig Shine, General Manager, gave evidence on affirmation on behalf of the respondent. Mr Shine gave evidence that he is a plastics engineer and had his own business until he sold this in 2006. The took up a role with the respondent on a consultancy basis and he was later asked to take over the production side of the business which he does as a self-employed contractor. Mr Shine gave evidence in relation to the complainant’s role. The complainant reported to him, and his terms and conditions were continued in whatever role he was appointed to. The company was not in a position to give pay increases, and no one was in receipt of a bonus payment. Mr Shine was asked if there were changes to the complainant’s terms and conditions and he stated that he had no signed copy of the complainant’s terms and conditions and this was because “he refused to sign anything”. Mr Shine stated that his style of management was informal. Mr Shine was asked about the complaints the complainant made in relation to the company van. Mr Shine explained that this van was crashed, and they had to replace it. They asked the complainant to look at what was available. He sourced a van and Mr Shine supported this proposal. Meanwhile Mr Shine said that he had an old van at home, and he offered it to the complainant on an interim basis. This was merely a stop-gap solution. Mr Shine was asked if he made any remarks about the complainant which could be taken as derogatory. Mr Shine stated that he respected the complainant, and he would hate to think that he would ever speak in such a fashion. Mr Shine stated that he gives general directions, and he has not replaced the complainant yet. Mr Shine denied that he issued an instruction to staff not to report to the complainant and stated that would not be his style. Mr Shine was asked to outline what changes were made to the complainant’s role. He stated that he wanted to broaden his role and have a greater flow of information. He wanted to secure a number of positions. Mr Shine stated that he did not want to restructure the role. Mr Shine was asked about the complainant’s evidence that he was excluded from management meetings. He stated that meetings were held every day and he organised things so that only those who needed to be at the meetings attended. It was not necessary for everyone to attend every meeting. The company had grown considerably, and he needed to keep a focus on the things. Mr Shine was asked about the issue in relation to an employee leaving and he asked the complainant to speak with this person. Mr Shine said that he felt that the complainant was being a shop steward for this employee and the complainant did not want to report to him. Mr Shine was asked if the complainant’s role changed to that of data input. He said that it did not, and he emphasised that the respondent had a great resource in the complainant. There were two other employees, one who brought in business and the other who was a specialist engineer with an aviation background. Mr Shine was asked if he agreed that he told the complainant that he would do what he was told. Mr Shine explained that he was in the office, and he could observe that the complainant was “built up”. The complainant came into his office and stated that he was not going to be a secretary for Mr A. Mr Shine said that he told the complaint that they were paid by the respondent and that “we will do what they want us to do”. Mr Shine was asked about the complainant’s reporting to Mr A in January 2022 about his difficulties with him. Mr Shine said that the complainant went over his head in doing so and this was one of a number of occasions. Mr Shine said that he brought in Mr B who was a friend of the complainants. He tried for two years to get the complainant to look at his role. Mr Shine said that his plan was to integrate and expand roles as the company grew. Mr Shine was asked if other people’s roles were changed. He stated that you cannot put someone in a role that they are not suitable for. He wants to get the best from employees. Mr Shine was asked why he failed to give the complainant notice about the changes to his role. Mr Shine said that he informed the complainant and that he was going to outline these changes and the complainant was ok with that. Mr Shine stated that he had spent two years negotiating with the complainant and there were no changes to his role. Mr Shine stated that there were no changes to the complainant’s role since he left the company. Mr Shine was asked why he did not pay the complainant sick pay. He outlined that they are a small company, and that sick pay is discretionary. The complainant was previously facilitated with time off. Mr Shine stated that they do not pay sick pay and the same applies to managers. Mr Shine was asked if he agreed that the complainant could work from home and stated that he did. Mr Shine said that if there was an issue, he would deal with it but working from home was dealt with on a day-to-day basis for each employee. Mr Shine was asked if the respondent failed to investigate the complainant’s grievance. Mr Shine gave evidence that he did not know that the complainant had made a complaint against him. Mr Shine confirmed that he was aware of the letters exchanged between the complainant’s solicitors and HR. Mr Shine stated that he was anxious to have any difficulties sorted out. Mr Shine was cross examined by the complainant’s representative. He was asked to clarify when he went to the floor to see if anyone knew what the matter was with the complainant. He confirmed that this happened in March. Mr Shine stated that he had no record of a text from the complainant stating that he was out sick. Mr Shine also confirmed that the complainant’s position was not filled as it was not advertised. Mr Shine stated that he was expecting the complainant to return. Mr Shine confirmed that this is a role that the company needs. Mr Shine was asked what the purpose of the meetings with the complainant were on 1st and 8th March. He stated that this was held “in order to clear up what we had agreed”. Mr Shine was asked about the letter dated 11/03/2022 which was described as an “at risk” meeting. Mr Shine stated that this was an invitation to a consultation meeting, and he did not see the complainant’s role as being under threat. Mr Shine stated that he kept the role open. Mr Shine was asked if the complainant was ever paid during periods of sick leave. He stated that he depended on the circumstances and gave the example of COVID. Mr Shine stated that if the complainant was out sick, he paid him for the hours he had put in. It was put to Mr Shine that he did not dispute that there were occasions when the complainant was paid while on sick leave and he confirmed that he did not dispute this. Mr Shine was asked why the complainant was not paid when he went out on sick leave on 8th March. Mr Shine said that he didn’t know what was going on. It was put to Mr Shine that the complainant sent him a text from the Emergency Department, and he stated that he did not recall that. It was put to Mr Shine that eventually he knew what the matter was, and he confirmed that he did when he got the complainant’s medical certificate. Mr Shine was asked when he got this certificate and he stated that it was sometime in April 2022. [Adjudicators note: It was clarified by the complainant’s solicitor that the medical certificate was sent to Mr Shine on 14th March 2022 at 16.33. A copy of this e mail and medical certificate was submitted after the hearing]. Mr Shine was asked what his rationale was for not paying sick pay to the complainant once he received the medical certificate. Mr Shine stated that sick leave “was paid on an ad-hoc basis” and that payment could not go on forever. Mr Shine also stated that they don’t have a long-term sick leave policy. It was put to Mr Shine that the respondent has an income protection policy. Mr Shine stated that he was not aware of that, and that the complainant had different terms and conditions. Mr Shine was asked what was different on this occasion that meant that the when the complainant was not paid when was on sick leave. Mr Shine stated that the company did not have a long-term sickness policy. Mr Shine was asked about the number of times that the complainant was out sick prior to March 2022. Mr Shine stated that the complainant “had numerous days” and on those occasions he told him not to clock in or clock out. Mr Shine confirmed that he paid the complainant on those days. Mr Shine was asked to clarify his earlier comment that the complainant “had dropped you in it”. Mr Shine stated that the complainant’s position was critical to the working of this business and when he went sick, they had an issue. Mr Shine was asked if it was fair to suggest that he no longer trusted the complainant’s bona fides? Mr Shine said that he did not agree. Mr Shine was asked if he read the respondent’s written submission and he confirmed that he did. He stated that when you start a process you hand it over to the professionals. It was put to Mr Shine that there should be mutual trust between an employee and an employer. Mr Shine said that he did not believe that this was a fixed thing. It was then put to Mr Shine that he lost trust in the complainant from 8th March 2022 he doubted his good faith. Mr Shine stated that he never doubted the complainant’s good faith. It was then put to Mr Shine that the paragraph in the respondent’s written submission which stated: “We will now show that the failure to engage in the consultation process which is serious in its own right and on its own would be fatal to his case, the calculated moves that were to come will show that the claimant was operating at an optimal level to try and work himself into a situation that would provide a big pay out” clearly shows that the respondent had lost faith in the complainant. Mr Shine stated that he worked with the complainant for four years and he had faith in him. Mr Shine was asked if it was his evidence that the complainant “was trying to shake the company down” and that he was trying to negotiate a payment. Mr Shine stated that the complainant could decide that. Mr Shine was asked if he was suggesting that his comments indicated that the complainant could return to work. He stated that he did not suggest that. Mr Shine was asked about the complainant’s grievance that he submitted in mid-May 2022 and if the way the respondent dealt with this indicates that they dealt with it in a reasonable manner. Mr Shine stated that he was not aware of this grievance until three days before the WRC hearing. It was put to Mr Shine that it was not proper functioning of the respondent that a grievance which was raised in May 2022 was still not dealt with in December 2022. Mr Shine stated that you cannot deal with a grievance when an employee is on sick leave. It was put to Mr Shine that he confirmed that he was aware of proper procedures but in this case, procedures were not followed. Mr Shine said that the position was that you cannot deal with a grievance when someone is out on sick leave. It was put to Mr Shine that he was engaging with the complainant to change his role and Mr Shine confirmed that the complainant did not want to change. Mr Shine did agree that he organised the “at-risk” meeting with the HR Consultant. It was also put to Mr Shine that when the complainant became sick, he regarded this as a tactic by the complainant. Mr Shine stated he had to have regard to timelines. It was put to Mr Shine that his refusal to pay the complainant was a tactic and he denied this. It was also put to Mr Shine that the removal of the company van was another tactic and he denied this. It was also put to Mr Shine that he failed to inform the complaint about the income protection policy, and he stated that he knew nothing about it. It was put to Mr Shine that the loss of salary to the complainant was an attempt by the respondent to force his hand. Mr Shine denied that this was the case. It was put to Mr Shine that the respondent dragged its heels in relation to dealing with the complainant’s grievance and Mr Shine denied that they had done so. It was put to Mr Shine that the respondent forced the complainant to resign, and their letters were the equivalent to “putting lipstick on a pig” – they tried to dress things up. Mr Shine denied that this was the case and stated that he was managing the resources as best he could. It was also put to Mr Shine that in order to inflict as much pain as possible on the complainant they did not pay him holiday pay. Mr Shine stated that the reason for the non-payment was because the numbers were in dispute. Mr McGlynn gave a closing submission on behalf of the respondent. The respondent has given evidence that there were discussions in relation to the complainant’s role. If there is no agreement arising from such discussions, then an employee’s position is at risk. While the complainant was on sick leave there could be no meeting with him until such time as he was deemed medically fit to engage in the process. There was a letter sent to the complainant’s legal representative in July 2022 which confirmed this. The Occupational Health report confirmed that the complainant was fit to engage and then resume duty when the process was completed. The next letter the respondent received from the complainant’s solicitor was one objecting to the HR consultant who was asked to investigate the grievance. It was then difficult to get another HR consultant to investigate this and the one was sourced they were not available until January 2023. The complainant’s letter of resignation and the respondent’s letter with an update on the grievance investigation crossed. In relation to the suggestion that the respondent felt that he was “trying to shake down the company” it was important to look at the steps taken by the complainant up to that point. In relation to the complainant’s mitigation of loss the respondent does not believe that a time of full employment that the complainant found it difficult to obtain work and the respondent does not accept that the complainant made sufficient efforts to obtain work. The respondent believes “that the only people unemployed are people who do not want to work” and the respondent cannot be held responsible for the complainant’s lack of effort in that regard. The respondent is disappointed that their relationship with the complainant ended the way that it did. The respondent refutes the proposition that the complainant was constructively dismissed and refers to several legal precedents such as Berber V Dunnes Stores (464/2006) Ruffley v St Anne’s School [2017] IESC 33. The respondent could not progress the grievance procedure and at all points the complainant was aware that the respondent could not do anything until he was able to attend a meeting. The respondent submits that the complainant has no case. |
Findings and Conclusions:
CA-00056567-001: Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991. This complaint was withdrawn at the hearing. CA-00056567-02: Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment Act, 1994. The only evidence put forward by the complainant was that his contract did not state that he would not paid while on sick leave. The respondent noted that the contract of employment contains a discretionary clause in relation to the payment of sick leave. In the absence of any further evidence in relation to this complaint I find that this complaint is not well founded. CA-00056567-003: Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977. Both parties provided the hearing with comprehensive submissions including details of meetings and copies of the various correspondence exchanged. As an Adjudication Officer I am obliged to establish if Section1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal. I note the respondent’s preliminary point in relation to the respondent’s inclusion of a “Strictly Without Prejudice” document from the complainant’s legal representatives in their written submission. That document had no status in relation to the findings and conclusions outlined in this decision. The Law Section 1 (b) of the Unfair Dismissals Act defines ‘dismissal’ for the purposes of the Act in circumstances where: “(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”. Section 6(1) of the Act states: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”. Deliberation: Where the fact of dismissal is in dispute a complainant must establish that his/her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act. To succeed in a claim of constructive dismissal under the Act, a complainant must demonstrate that his/her decision to resign their employment resulted from either a repudiatory breach of his contract of employment by the employer or such unreasonable behaviour by the employer that he could not fairly be expected to put up with it any longer. Was there a repudiatory breach of the complainant’s contract of employment? To amount to a repudiatory breach, the employer’s breach must constitute a fundamental breach of the employment contract. A repudiatory breach allows a party not in breach to accept the breach and affirm the contract or to repudiate the contract. If the employee decides to repudiate the contract by resigning, he/she needs to do so in a timely manner otherwise his/her continuing to work can be taken to amount to an affirmation. The test by which a repudiatory breach of contract can be identified was set out by Lord Denning M.R. in Western Excavating Limited (ECC) v Sharp [1978] IRLR 332 as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.” In assessing whether the employer’s conduct in this case amounted to a repudiatory breach of the complainant’s contract of employment the I find that the complainant has established facts that there was a breach of the complainant’s contract of employment such that he was entitled to regard himself as having been dismissed. These include the failure to investigate the complainant’s grievances even after he was deemed fit to engage by the respondent’s occupational health advisors. The respondent also failed to ensure that the complainant was assessed in a timely manner. The respondent removed the company vehicle, mobile phone, and other benefits without having undertaken any independent medical assessment of the complainant. The respondent assumed that the complainant had another agenda, and this was confirmed in their written submissions. Was the employer’s behaviour such that it was reasonable for the Complainant to resign? The second question for the Adjudication Officer to assess is whether the complainant was entitled to terminate his employment because of the actions of the Respondent. In cases of constructive dismissal, the Adjudication Officer must examine the conduct of both parties. This requires an assessment of the events leading up to the termination of the complainant’s employment. At the hearing evidence was heard about the employment the relationship issues between the complainant and his manager. There is a conflict of evidence in relation to what happened that led the complainant to submit his resignation. Several events and/or incidents were cited by the complainant and are consolidated as follows: · The complainant alerted a Senior Manager in January 2022 that he had issues in relation to the conduct of his manager · There were ongoing issues of an interpersonal nature with his manger · The complainant was in discussions about potential changes to his role and no agreement was finalised · These changes were communicated to other team members as being finalised · The complainant was then advised that his role was “at risk” of redundancy · The complainant went on sick leave and the respondent did not pay him sick leave. This was out of line with previous periods of sick leave and also out of line with what he was told by a Senior Manager · The complainant was not informed that he could have availed of an income protection policy which the respondent had put in place. The documentation provided to the hearing confirmed that the respondent is the “Policy Owner” · The complainant while on sick leave submitted two grievances (18/5/22 and 24/10/22). The grievance dated 18/5/2022 was comprehensive, clear and formal · The complainant went on sick leave from 07/03/2022. The respondent did not organise an assessment by their occupational health physician until 20/10/2022. This was the only a time that the respondent sought an independent assessment of the complainant’s fitness to engage · In October 2022 the responded nominated a HR consultant to examine his grievance. This was the same HR consultant that they previously engaged to discuss the “at risk” situation with the complainant and who had on-going involvement in the complainant’s issues. The complainant objected to this move. The respondent then stated that an alternative HR consultant would not be available until January 2023. Was it reasonable for the Complainant to resign? The question for the Adjudication Officer to consider is whether the cumulative effect of all the interactions between the complainant and the respondent crossed a threshold so as to damage the relationship to such an extent that it was reasonable for the complainant to resign. The Act places a high burden on a complainant in a constructive dismissal case. To succeed in such a claim, a complainant must establish that the employer’s unreasonable behaviour was such that he/she was justified in believing that he/she could not continue any longer in that employment. An employee must alert the employer to his situation by availing of the grievance procedure, where one exists, to allow the employer an opportunity to rectify the problem before resigning. The complainant gave evidence the hearing that he initially tried to have his issues with his manager dealt with on an informal basis. This was an understandable way to deal with matters given the positive working relationship he enjoyed for some years. However, matters escalated when his manager tried to change his role and the complainant did not agree to these changes. Due to his lack of agreement the respondent then gave these discussions such prominence that he was invited to an “at risk” meeting with the respondent’s HR consultant. This meeting did not progress as the HR consultant would not progress the meeting unless the complainant signed a waiver in relation to his right to be represented. This meeting generated such a severity of stress that the complainant attended an Emergency Department and was placed on certified sick leave. He was unable to attend any further consultation meetings. The respondent view of this was: “It seems, and it was later revealed to be the case that the claimant saw this as an opportunity to extort as much money as possible from the company as possible”. The complainant remained on sick leave and despite his engagement with the respondent through his legal advisors no progress was made in relation to his grievances. The respondent did not organise the independent medical assessment until 20/10/2022 which was over 33 weeks after he commenced sick leave. There are a number of significant inconsistencies in the respondent’s position which merit some discussion: · The respondent submits that while the complainant’s position was at risk no decision was made in relation to a redundancy. The respondent also submits that the “complainant had valuable skills which are valued by the company”. Despite this assertion the changes which the General Manager wanted to implement were relayed to staff after his meeting with the complainant on 16/02/2022. Details of the new department were outlined at this meeting and the complainant would be reporting to another manger as a result of this change. The General Manager was aware that the complainant had issues with the proposed changes, and he left the complainant with the understanding that further discussions would take place. The next discussions with the complainant was the “at risk” meeting on 01/03/2022. There is no persuasive rationale why this was escalated to that level and no explanation why the complainant’s role was singled out. At no stage was the complainant reassured that he would continue to have a viable career with the respondent.
· The complainant was not paid while on sick leave. This was at variance with the previous practice and while it is not disputed that the respondent was contractually entitled to do so the complete lack of engagement with the complainant was misguided and added to the complainant’s already stressed predicament. The respondent at the hearing stated in evidence that they did not have a long-term sick leave policy. However, the complainant was not paid when he commenced sick leave. The respondent’s decision was made without a proper medical assessment. It is a straightforward fact that the respondent made an immediate assumption about the complainant when he commenced sick leave and this is substantiated by the ceasing of any sick pay to the complainant.
· Mr Shine gave evidence that he kept the complainant’s position open as he expected him to return. This would not align with his rationale for not paying him during his period of sick leave.
· The respondent’s explanation that the complainant was not paid sick leave because they did not know what was going on is not factual. The complainant sent his manger a text message from the Emergency Department, and he received a medical certificate from the complainant on 14/03/2022.
· Mr Shine stated in evidence that he was not aware that the complainant had submitted a grievance against him until three days before the WRC hearing on 05/10/2023. This is an astonishing given that Mr Shine stated that many of the changes he put in place were designed to have a greater flow of information within the company and given the exchange of correspondence between the complainant’s legal advisors and the respondent’s HR consultant. As the HR consultant was also the respondent’s initial nominee to investigate the grievance it would be prudent to expect that Mr Shine was informed that an investigation was planned at that time. At stated previously, in any case of constructive dismissal, the Adjudication Officer must examine the conduct of both parties. A failure to invoke the employer’s grievance procedure can be fatal to a complaint of constructive unfair dismissal. In this case the grievance procedure was used but the respondent did not make any attempts to deal with this. The respondent’s view that they could not do so without obtaining a medical assessment of the complainant is correct. As the responsibility for the delay in obtaining this lies entirely with the respondent. When this assessment was completed, some seven months after the complainant commenced sick leave, the outcome was that the complainant was “fit to participate in an investigation” and once that process a review appointment “may be appropriate to assess [the complainant’s] medical fitness to return to work”. In taking into account all of the evidence I find that the complainant has presented credible particulars of the unwarranted actions of the respondent. I find that it was reasonable for the complainant to resign his employment within the definition of Section 1(b) of the Unfair Dismissal Acts, and I am satisfied that his resignation amounts to a constructive unfair dismissal within the meaning of the Acts and that this has not been rebutted. The complainant is seeking compensation and in view of the findings I have made this is the appropriate remedy. As already noted, I am satisfied that the complainant acted reasonably throughout and did not in any way contribute to his dismissal. I am also satisfied that the complainant’s sick leave absence, and the loss of income, is directly attributable to the experience which resulted in his dismissal. Redress: Section 7 of the Act, in its relevant parts, provides:
7. Redress for unfair dismissal (1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. (2A) In calculating financial loss for the purposes of subsection (1), payments to the employee— (a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or (b) under the Income Tax Acts arising by reason of the dismissal,shall be disregarded. …. (3) In this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation. “remuneration” includes allowances pay and benefits in lieu of or in addition to pay. The Complainant submitted that he is seeking compensation for unfair dismissal. It was not disputed that the complainant’s gross pay from the Respondent was €1,326.92 per week. The complainant has provided details of efforts to find work and details of his financial loss. He succeed in obtaining new employment on a temporary basis from 20/09/2023. I am satisfied that the complainant is entitled to be compensated for his financial loss. This was a period of 40 weeks and 2 days from the date of dismissal. I estimate the loss for this period of time as €53,076.00 Section 7(3) of the Act allows me to consider “…any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2014, or in relation to superannuation.” Evidence was given in this case that the Complainant had 13 years and 10 months unbroken service with the Respondent. I find that the Complainant will have a prospective loss of rights with regards to any future redundancy situation that may arise, I would put a value on this prospective loss at €17,244. In relation to his loss of other benefits and future loss I put a value on this of €15,923. In light of the complainant’s blamelessness in this situation which led to his dismissal and the serious and long-term impact on him which arose from this situation I consider it just and equitable in all the circumstances and pursuant to the provisions of Section 7 of the Unfair Dismissals Acts to award the complainant total compensation in the sum of €86,243.00. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00056567-001: Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991. This complaint was withdrawn at the hearing. CA-00056567-02: Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment Act, 1994. I find that this complaint is not well founded. CA-00056567-003: Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977. For the reasons outlined in detail above I find that the complainant was unfairly dismissed from his employment with the respondent contrary to Section 6 of the Unfair Dismissals Acts 1977 to 2015. I therefore order, pursuant to the provisions of Section 7 of the Acts that the respondent pay the complainant €86,243.00 in compensation for his dismissal. |
Dated: 03/11/2023
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Constructive dismissal |