Worker

Employer

Anonymised Parties

Process Operator

Manufacturing Company

Representatives

 Self-Represented.

No attendance.

Act

Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Act 1969, as amended.

CA-00054572

19/01/2023

The Worker commenced employment as a process operator on 4 January 2022 and handed in his resignation on 8 September 2022 because of what he claims was an intolerable situation created by the Employer whereby he had no other option but to resign. He is claiming constructive dismissal. His wage for a 39-hour week was €627 gross; €494.71 net. He initially worked a probation period of 6 months.

The following is a summary of the Worker’s case as presented in his written submission, and verified by him at the oral hearing:

In the last week of March 2022, the Worker went to the Employer’s Health and Safety Officer (HSO) to report that his right wrist was getting sore from the job. The Worker claims that he was told to “fuck off, I’m dealing with the insurance.” On 14 April 2022, the HSO was passing the Worker’s station, and when he told him again about his wrist, the Worker claims the HSO said to him “Fuck off, I’m going home in 40 minutes.” The Worker was suffering so much severe pain in his wrist that he had to go and seek a sick certificate from his GP on 1 June 2022 and was eventually out sick until 4 July 2023.  When he dropped his certificate into the Employer, he met two members of management, and he told them that he could not go back to the same job because of the injury incurred. He was told to see the company doctor before his return.

On 28 June the Worker stated that the HSO rang him and enquired about his return to work. When he told him about the instruction to see the company doctor, the Worker claims the HSO said that “we don’t want to be wasting €400 on sending you to the company doctor.” The HSO rang him back said that he (the Worker) must come a meeting later that day, and before 3.30pm, because the member of management he must meet was going on holidays.

When he called into his place of work for the planned meeting on 28 June, he was told that the original person he was to meet was too busy. He instead met with the HSO and the director of operations. The latter told him that there was no other work available to him, bar a position on the production line (according to emails exhibited by the Worker). The Worker felt that there would be a recurrence of the injury if he worked the production line. The Worker claims that the director of operations said to him that he wanted him (the Worker) to resign. The Worker was deeply upset by this turn of events but did not wish to submit his resignation and said so in a later email to the employer.   

The company doctor advised that the Worker should return to work in a new role and on 11 July commenced work on the production line.  When he went to the HSO to report that working on the production line exacerbated the injury, the Worker claims that the HSO told him that it was his (the Worker’s) own fault for turning up at work. When he reminded the HSO about the times he used abusive language when the Worker first brought up his injury, the Worker claims that the HSO instructed him to retract the statement, but the Worker refused to do so. His line manager sent him for training on his new role but the pain in his wrist returned. When he told the HSO about it the Worker claims that the HSO told him “What do you want to do about it. Go away home and send in a sick cert.”. The Worker remained on sick leave because he was told by his GP and medical experts that surgery was his only option. He formally resigned by email to the Employer, giving a week’s notice, on 29 August 2022.

The worker submits that his treatment by the Employer since reporting his wrist injury was so intolerable that he had no other option but to resign.

The Employer did not attend.

In conducting my investigation, I have taken into account the relevant written and oral submissions presented to me by the Worker. From the Worker’s account it is clear that when he brought the report of his injury originally to the Health and Safety Representative (HSO) he was treated with disdain. This attitude persisted and I am satisfied that the Employer did not act in a way   expected of any reasonable employer when faced with an employee who presents with a workplace injury. It seems, from the Worker’s account, that no proper health and safety investigation took place and nor were the concerns of the Worker taken on board, particularly when he was re-assigned to the production line in the manner described. It is a fundamental term of any contract of employment that a worker should be provided with a safe place to work, and indeed it is a fundamental requirement also in health and safety law that those who bring health and safety concerns to the attention of employers, are, at the very least, treated seriously and with respect.  Having considered the account of the Worker, I find that he was justified in believing that Employer had repudiated the contract in the breach of a fundamental term in his contract and I am satisfied that his contract was terminated unfairly by way of constructive dismissal.  

Industrial Relations Act 1969, Unfair Dismissal.