ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032461
Parties:
| Complainant | Respondent |
Parties | Stephen Dunne | Magna International Autolaunch Ireland Ltd |
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Representatives |
| Robin McKenna IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00042700-001 | 24/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004 | CA-00042700-003 | 24/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00042700-004 | 24/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00042700-005 | 30/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00042700-006 | 30/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00042700-007 | 30/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00042700-008 | 30/07/2021 |
Date of Adjudication Hearing: 20/02/2023
Workplace Relations Commission Adjudication Officer: Anne McElduff
Procedure:
In accordance with Section 41 of the Workplace Relations Act [2015-2021], Section 8 of the Unfair Dismissals Act [1977-2017] and Section 79 of the Employment Equality Act [1998-2022], following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to present their submissions and relevant evidence. The Complainant was unrepresented and the Respondent was represented by IBEC.
The adjudication hearing commenced on 16/5/21 and concluded on 20/2/23. At the outset I drew the parties attention to the implications of the Supreme Court decision in Zalewski V Adjudication Officer and WRC [2021] IESC 24 and I note the WRC had done likewise prior to the hearing. In the course of the adjudication hearing the parties were afforded fair procedures including the opportunity for cross examination and evidence was taken on oath/affirmation.
Set out below is a summary of the Complainant’s and the Respondent’s respective cases.
Background and Preliminary Matters:
The Complainant commenced employment with the Respondent on the 21st January 2008. Initially the Complainant was employed as a toolmaker apprentice and on the 11th May 2009 he was made a permanent toolmaker. The background to the Complainant’s complaints to the WRC was the Covid-19 pandemic and events surrounding the Respondent’s requirement for employees to wear a face mask. At the outset the Respondent stated that dismissal was in dispute as it maintained the Complainant had resigned of his own volition. This was disputed by the Complainant. Having heard from the parties I determined it was a case of alleged constructive dismissal and consequently that the burden rested on the Complainant to establish he was unfairly dismissed. In the course of the adjudication hearing, the Complainant withdrew the following complaints due to duplication: - CA-00042700-001 - CA-00042700-005 - CA-00042700-007 |
Summary of Complainant’s Case:
CA-00042700-008 The Complainant stated that he had “no option” but to resign. The Complainant stated that he suffered mentally as a consequence of the actions of the Respondent and/or its employees. The Complainant stated that on Tuesday, 19 January 2021 he was informed that it was mandatory to wear a face mask in the workplace. He stated that for some three or four months prior to then he was wearing a visor in the workplace which was acceptable. The Complainant stated that in January 2021 there was a requirement to wear a face mask and that when he informed his Line Manager he couldn’t do that, he was told he would have to get a letter from his GP to that effect. The Complainant stated that he made an appointment to see his GP and on Thursday, 21 January 2021 he provided the GP letter to his Manager which stated as follows: “I can confirm the above named gentleman is patient of my surgery. He has breathing difficulty wearing face mask regarding his weak lungs. His oxygen level drops under the mask…… I recommended him, regarding the HSE guideline, wear shield to protect himself and the others”.
The Complainant stated that as a consequence on 21 January 2021 he was moved 25 yards up the production floor away from the rest of his colleagues. He stated that is when the bullying started. The Complainant stated that he was called a “leper” and whilst the person who made this remark later apologised and enquired if the Complainant accepted his apology, at the same time this person stated that he would have to come up with a different name to call the Complainant. The Complainant stated that other workers were also looking at him and making jokes about his situation. He identified two workers who he stated came up and attempted to put stands and red tape around him thereby cordoning him off “like an animal”.
The Complainant stated that the same thing happened the following day ie Friday 22 January 2021 and on the following Monday, 25 January 2021. The Complainant stated that he was told by his Line Manager to stay in his designated area and not to talk to people. The Complainant stated that his Line Manager “got irritated with him” on Friday, 22 January 2021 and asked him what was wrong with him and made him feel very uncomfortable.
The Complainant was asked to attend the Company Doctor which he did on Monday, 25 January 2021. He stated that he explained to the Doctor that he had difficulty breathing and that he had a letter from his own GP to that effect. On the afternoon of Monday, 25 January 2021 the Company Doctor emailed the Respondent stating as follows:
“I saw Stephen Dunne today who has difficulty wearing a mask at work. He is currently wearing a shield. On examination……. I feel that there is no good reason not to wear a mask…….”
On the morning of Tuesday, 26 January 2021 the Complainant stated that he went to the office of the Environmental, Health and Safety (EH&S) Manager to report an issue with an allen key. He stated that he was asked to wait outside the office for social distancing and whilst there, another employee made a comment that “they tried to keep out vermin”. On the same morning, the Complainant stated that he was asked by his Line Manager and the Respondent’s HR Manager to comply with the company’s health and safety guidelines and wear a mask. The Complainant stated that when he replied that he would not wear a mask he was advised that he would have to leave the premises. The Complainant stated that he left the workplace that morning – 26 January 2021 – at approximately 9.30/10am and that he never returned to the workplace after that. The Complainant was taken off the payroll after 26 January 2021.
The Complainant stated that after 26 January 2021, he was contacted by the HR Manager “a few times” to attend a meeting but that he could not attend as the Respondent had determined that he could only be accompanied by a fellow employee and not a person of his own choosing. Eventually however, the Complainant – unaccompanied - met with the Respondent’s Managing Director and the HR Manager on the 2nd of March 2021. The Complainant stated that he set out all his complaints at that meeting including in relation to bullying and name-calling. He informed the meeting that he had purchased a new visor. The Complainant stated that he felt the Managing Director (MD) was fair to him and that the MD instructed that he be put back on the payroll. The Complainant further stated that he was asked at the meeting on the 2nd March 2021 if he wished to return to the workplace to which he replied “he couldn’t go back” as he felt there was no return. The Complainant stated that the Respondent tried to meet with him again but that he didn’t attend any further meetings with the Respondent and that he didn’t see any option of going back to work.
The Complainant also provided further medical evidence at the 2nd March meeting – namely a letter from his GP dated the 9th February 2021 which again referred to the Complainant’s breathing difficulty if he had to wear a face mask, his weak lungs and psychological concerns about mask wearing which could cause the Complainant to be dizzy or lightheaded. The GP letter recommended the wearing of a “closed” shield.
The Complainant stated that at the request of the Respondent he participated in medical reviews conducted by an Occupational Health provider on the 9th March and 13th May 2021. Arising from both reviews he was deemed not fit for work.
The Complainant submitted his resignation notice on the 5th July 2021 as he had decided he had no option but to move on and he collected his tools. The Complainant stated that he still does not understand how he was asked to leave a job after 12 years. The Complainant stated that he obtained new employment on 16 July 2021, has had three jobs and he outlined his loss of earnings.
The Complainant stated that his brother also worked for the Respondent and that he had heard in the workplace about the Complainant’s situation. The Complainant stated that he was therefore apprehensive that confidentiality was not being adhered to.
The Complainant's was cross examined on his evidence. In the course of the cross examination the Complainant stated that he had agreed to the introduction of measures in the workplace to combat Covid-19 but he disputed that he was moving his visor up and down. The Complainant agreed under cross examination that the Company Doctor had stated he could wear a face mask and that he refused to wear a mask on 26 January 2021 and left the workplace that day. The Complainant also agreed that the Respondent had emailed him five times in February 2021 but that he did not attend a meeting due to his concerns about representation. Under cross examination, the Complainant accepted that the first time he formally raised his complaints of name calling, taunting, bullying and harassment, was at the meeting on the 2nd March 2021. He also accepted under cross examination that he was “not a stranger to having jokes/banter” in the workplace. In terms of his employment, the Complainant agreed that he considered himself still employed between 26 January and 2 March 2021, that his job was available to him during that time but that he himself felt he could not go back.
The Complainant was questioned on his allegations of bullying and harassment to which he replied that he never wanted to make a complaint as he felt he couldn’t return to the Respondent’s workplace at all. In response to a question about the Respondent’s Grievance Procedure, the Complainant stated that he did not initiate a Grievance Procedure as he considered the procedures suited the Respondent. The Complainant agreed under cross examination that the Respondent had appointed an Investigator to examine his complaints, however he questioned the impartiality of the Investigator as he was being paid by the Respondent. The Complainant accepted that he was interviewed by the Investigator and also agreed that he did not submit any comments on the Investigator’s report. He also stated that he did not appeal the Investigator’s report as he did not know he could appeal it. The Complainant accepted under cross examination that he resigned the same day as he received the Investigator’s report. The Complainant stated that he sought a meeting with the Respondent in July 2021 but that “he had no intention of returning to Autolaunch”.
The Complainant also clarified under cross examination that initially he agreed to participate in mediation but subsequently withdrew from the process.
CA-00042700-003 The Complainant stated that he was claiming penalisation under the Industrial Relations (Miscellaneous Provisions) Act 2004 due to the loss of earnings he incurred between 26 January 2021 and the 2nd March 2021 when he was restored to the payroll. In that regard, the Complainant explained that because there was no trade union presence in the workplace he did not have access to trade union representation and therefore was not comfortable approaching HR to address his issues. Under cross examination the Complainant accepted that he had not requested trade union representation at any of the proposed meetings with the Respondent but that instead he had requested his father to be allowed attend the meetings with him. He stated that he wouldn’t have put his brother – who also worked for the Respondent - in the position of having to represent him. CA-00042700-004 The Complainant stated that he was unable to wear a face mask due to his medical condition/disability. He stated that as a result he was targeted by his fellow employees, intimidated and was subjected to name calling including being called a “leper” and “vermin”, that he was discriminated against because of his disability and not provided with reasonable accommodation.
Under cross examination the Complainant stated that he had not read the employee manual in relation to initiating a complaint about his treatment. He stated that he was not aware of the internal procedures for making a complaint, that he was worried that if he made a written complaint it would affect his job and accordingly he did not feel safe approaching HR, and that he did not wish to be seen as a “rat” or be subjected to a backlash.
CA-00042700-006 The Complainant was not paid between 26 January 2021 and 2 March 2021. Following the meeting with the Respondent on the 2nd March 2021 the Complainant was restored to the payroll. However, on the 29th March 2021, the Complainant was placed on sick pay following reviews by the Occupational Health provider which deemed him unfit for work. The sick pay period lasted from the 29th March 2021 until the Complainant’s resignation. Under cross examination the Complainant stated that he did not disagree with the Respondent sending him to the Occupational Health provider nor did he disagree with the medical opinions of the Occupational Health provider. He stated that he had no discussions with the Respondent in relation to the reports of the Occupational Health provider. The Complainant also stated under cross examination that he had no issues with his pay up until 1 March 2021. However the Complainant stated that he was claiming breach of the Payment of Wages Act [1991-2017] arising from being placed on sick leave for the period 29 March 2021 until his resignation as he was only paid half his wages during sick leave. Summary: It is the position of the Complainant, that arising from his course of dealings with the Respondent in 2021 – as summarised above - he had no option due to name calling, harassment and bullying but to resign his position, that he was discriminated against on the grounds of disability contrary to the Employment Equality Act [1998-2022], that his wages were unlawfully deducted from the end of March 2021 and that he was penalised contrary to the Industrial Relations (Miscellaneous Provisions) Act 2004. The Complainant stated that the actions of the Respondent significantly impacted his mental health, that after he left the company he became a recluse but that he missed his work with the Respondent. |
Summary of Respondent’s Case:
CA-00042700-008 The Respondent outlined its background and stated that it employed over 470 people in its machining and toolmaking business. The Respondent stated that in December 2020 and January 2021 Ireland had been placed in lockdown due to the Covid-19 pandemic and there were no vaccines available at the time. The Respondent stated that by mid-January 2021, 24 of its staff were on leave due to Covid-19. The Respondent stated that on 5 November 2020 a text message was sent to staff advising that all personnel were expected to wear masks. The Respondent stated that the Complainant advised management at this time that he could not wear a face mask and the Respondent consented to him wearing a visor. The Respondent stated that there had been several issues raised regarding the Complainant’s “deliberate choosing not to wear his face visor properly”. The Respondent stated that the Complainant was accommodated in a separate work area at least two metres distance from the other employees, for the protection of himself and his colleagues. On the 19th January 2021, the Respondent stated that the Complainant was advised that “he had to wear a face mask with immediate effect”. Summary of Environmental Health and Safety (EH&S) Manager’s evidence: The EH&S Manager outlined his training and role in the Respondent. He outlined the measures put in place by the Respondent to deal with Covid-19 in March 2020 including social distancing and sanitising. He stated that at the outset mask wearing was not compulsory. By January 2021, the EH&S Manager stated that there were up to 22 employees who had Covid-19 and that across the workforce employees were frightened and scared of contracting the illness. The EH&S Manager stated that by 19 January 2021 it became mandatory in the workplace to wear a face mask as per the Respondent’s parent company policy. The EH&S Manager stated that when the Complainant informed him he had an underlying condition and could not wear a mask, that he advised the Complainant he would need to provide medical proof/a report from his GP to this effect. The EH&S Manager stated that after he received the Complainant’s GP letter on 21 January 2021, he and the Respondent’s Plant Manager decided to refer the matter to the Company Doctor. The EH&S Manager stated that on 25 January 2021 the Respondent’s Company Doctor reviewed the Complainant and reported that there was no good reason the Complainant could not wear a face mask. A meeting with the Complainant was held on 26 January 2021 which was attended by the Complainant, the Respondent’s HR Manager and the EH&S Manager. The EH&S Manager stated that the Complainant was advised at the meeting that he would have to comply with the Respondent’s rules and wear a mask or otherwise it would be deemed that he was not making himself available for work. The EH&S Manager stated that the Complainant protested against this direction, that he got upset and aggressive but that he/the EH&S Manager outlined the Respondent’s duty of care to all employees. The Complainant also mentioned at the meeting that he had to report an accident which had occurred that morning and that he/the EH&S Manager advised him to use the accident report form. The EH&S Manager stated that the Complainant left the workplace after the meeting on 26 January 2021. The EH&S Manager maintained that he had no option but to follow the medical advice of the Respondent’s Company Doctor which he trusted but he added that if the Company Doctor had advised that the Complainant should wear a visor, this would have been accommodated by the Respondent. The EH&S Manager stated that the requirement for mandatory masks ceased in 2022. The Complainant questioned the EH&S Manager on his evidence. Summary of Plant Manager’s evidence: The Plant Manager outlined his role in the Respondent. He stated that as a result of Covid-19 there was a tense atmosphere in the Respondent’s workplace. The Plant Manager stated that as a result the introduction of mandatory mask wearing was well received by the workers. He stated that initially the Complainant and another employee were accommodated in the workplace via social distancing. The Complainant was moved at least two metres up the factory floor working away from the other workers and was required to wear a face visor instead of a mask. The Plant Manager advised the Complainant to stay in his designated area and not to talk to anyone but he saw the Complainant leaving the area. The Plant Manager stated that it was also brought to his attention that the Complainant was wearing his visor up. The Plant Manager asked the Complainant to come to the office and to stand back 2 metres. The Plant Manager stated that Complainant got very aggressive, referred to one individual and asked if it is okay to be called a “leper”. The Plant Manager stated that he responded to the Complainant to the effect that this was not okay and that he advised the Complainant to complain to HR. The Plant Manager stated that the Complainant responded that he did not wish to make a complaint. The Plant Manager stated that he then spoke to the individual whom the Complainant had identified and that this individual stated that he was “only joking”. The Plant Manager stated the Complainant did not raise the matter with him again. The Plant Manager gave evidence in relation to the email of 19 January 2021 in relation to the Respondent’s policy on mandatory mask wearing. He stated that he advised staff of this requirement. The Plant Manager stated that on 26 January 2021 the Complainant was asked to attend a meeting with him, the EH&S Manager and the HR Manager to discuss the report of the Respondent’s Company Doctor. The Plant Manager stated that the HR Manager advised the Complainant that he if he did not wear a mask in accordance with the Company Doctor’s report, he would be deemed to be making himself unavailable for work. The Plant Manager stated that Complainant was upset by this and said he wanted to report an accident. The Complainant questioned the Plant Manager on his evidence. Summary of HR Manager’s evidence: The HR Manager outlined her role within the Respondent and stated that she was present at the meeting with the Complainant on 26 January 2021. The HR Manager stated that she advised the Complainant that he may be accompanied at this meeting. She stated that she explained to the Complainant, that following receipt of the Company Doctor’s report, he was required to wear a face mask in light of the serious health and safety issue arising from Covid-19. The HR Manager stated that she explained to the Complainant that otherwise he would be making himself unavailable for work. The HR Manager stated that the Respondent stopped paying the Complainant after 26 January 2021 as he did not come into work. The HR Manager outlined her subsequent unsuccessful attempts to meet with the Complainant and in that regard she referred to her various letters to the Complainant of 29 January 2021 and 12, 17 and 24 February 2021. She stated that she also advised the Complainant by letter that he may be accompanied by a colleague at any such meeting. The HR Manager stated that she and the Respondent’s General Manager (GM) met with the Complainant on the 2nd March 2021 and that the Complainant was unaccompanied at this meeting. The HR Manager stated that it was at this meeting, the Complainant first raised his allegations in respect of his treatment by his colleagues and that this was “new” to her. The HR Manager stated that prior to the meeting of the 2nd March 2021, the Complainant had not raised any allegations with her about his alleged treatment by others but that at that meeting he raised complaints against three people. She stated that the Complainant also mentioned taking a case to the WRC. The Complainant also handed in his second GP letter dated the 9th February. The HR Manager stated that both she and the General Manager decided to reinstate the Complainant’s pay following his attendance and engagement at the meeting of the 2nd March 2021. On foot of the Complainant’s oral allegations at the meeting of 2 March 2021, the HR Manager stated that she determined an independent investigation was necessary and that an external Investigator was appointed on 5 May 2021. The HR Manager stated that the Respondent invoked its disciplinary procedure in respect of the staff members identified by the Complainant. She also stated that the Respondent tried to engage in mediation with the Complainant but that he withdrew from the process. The HR Manager stated that she sent the Complainant copy of the Respondent’s Bullying & Harassment Procedure and Discrimination Policy on the 4th March 2021 but that he did not initiate either procedure or the Respondent’s Grievance Procedure which she stated was contained in the Company Handbook. The Complainant did not question the HR Manager on her evidence. Summary of Investigator’s evidence: At the outset the Investigator stated that he was impartial, that he had been hired in the past by employees and employers alike and that he was in a position to establish the facts. He stated that as part of his investigation he examined the Complainant’s contract of employment, the Company’s Handbook and that he interviewed a number of people including the Plant Manager, the Complainant's direct Line Manager, the EH&S Manager, the workers who allegedly made remarks about the Complainant such as “leper” and “vermin” and the Complainant. The Investigator stated that the worker who used the word “leper” had apologised for it, that the other worker had denied using the word “vermin” and that there was no witness in respect of the use of this word. The Investigator outlined his conclusions that the Complainant had not been treated differently in the workplace and that he had been accommodated. The Investigator stated that his report was issued on 5 July 2021 the same date as the Complainant’s resignation. The Complainant questioned the Investigator on his evidence and put it to him that his report was not impartial, was “farcical” and did not represent the truth. In the course of the questioning the Complainant clarified that the Investigator’s report did not prompt his resignation as he already had his resignation letter written. The Complainant also stated that he did not take issue or appeal the Investigator’s report as he was afraid any action on his part would be leaked. Summary: It is the position of the Respondent that it did not dismiss the Complainant, that the Complainant has not proven of case of constructive dismissal, that he did not initiate the Respondent’s Grievance Procedure or its Bullying and Harassment procedure although these were available to him, that it established an independent investigation, that the Complainant did not respond to or appeal the Investigator’s report and that from very early on, the Complainant’s mind was made up to resign. The Respondent cited various case law in support of its position. CA-00042700-003 The Respondent denied that it had breached the Complainant rights under the Industrial Relations (Miscellaneous Provisions) Act 2004. The Respondent stated that it had no knowledge as to whether the Complainant was or was not a member of a trade union and that he had not requested trade union representation at any stage. CA-00042700-004 The Respondent stated that the Complainant had not established a prima facie case of discrimination. The Respondent stated that the Complainant had not demonstrated that he was treated less favourably or differently to other employees as regards the Respondent’s response to the Covid-19 pandemic. The Respondent stated that the Complainant had not cited a comparator. The Respondent recited its dealings with the Complainant in January 2021, the outcome of the review by its Company Doctor on 25 January 2021, its various unsuccessful attempts to meet with the Complainant and the subsequent reviews by the Occupational Health provider on 9 March and 13 May 2021. The Respondent maintained that after receiving the opinion of its Company Doctor that the Complainant could in fact wear a face mask, it was not aware of any medical condition or disability that prevented the Complainant from attending work or that required the provision of reasonable accommodation. The Respondent stated that it did not receive any further medical evidence from the Complainant until the meeting of the 2nd March 2021 when the Complainant provided his GP letter of the 9th February 2021. The Respondent stated that following receipt of this letter it arranged for a review by an Occupational Health provider which took place on 13 March 2021. The Respondent stated that arising from this review, the Complainant was deemed unfit for work and that he resigned without ever being deemed fit to return to work. It is the position of the Respondent that there was no discrimination on the grounds of disability or failure to provide reasonable accommodation, as the Complainant never returned to the workplace after the 26th January 2021. The Respondent stated that as no adverse treatment or dismissal had occurred, the Complainant was not victimised. In terms of any alleged harassment in the workplace, the Respondent stated that it does not condone or tolerate any inappropriate behaviour, that the first it became aware that the Complainant wished to formally address allegations of inappropriate behaviour was at the meeting of the 2nd March 2021 and that it responded promptly by establishing an independent investigation. The Respondent cited the report of the Investigator in support of its position - with which it said, the Complainant did not take issue. CA-00042700-006 The Respondent denied that it made any unlawful deductions from the Complainant’s wages in breach of the Payment of Wages Act [1991-2017]. In this regard, the Respondent stated that the Complainant was paid for working 39 hours per week, that from early February to early March 2021 he was unpaid as he did not attend work or attend any of the proposed meetings sought by the Respondent in order to address and resolve his issues. The Respondent stated that as soon as the Complainant attended the meeting of the 2nd March 2021, he was immediately restored to the payroll. The Respondent submitted that wages must be earned and that as the Complainant did not attend work between early February and early March 2021 or attend meetings, no wages were earned and therefore no wages were properly payable to him during this period. The Respondent stated that following the review by the Occupational Health provider on 9 March 2021, the Complainant was deemed unfit for work. He was placed on sick leave with effect from the 29th March 2021 in accordance with the Respondent’s sick pay scheme. The Respondent stated that the Complainant was reviewed again by the Occupational Health provider on 13 May 2021 and that he was again deemed unfit for work. The Respondent stated that the sick pay scheme provides for a total payment equivalent to 50% of an employee’s normal basic take-home pay inclusive of any state benefit. In the case of the Complainant this was limited to a maximum of twelve weeks ie one week for every completed year of service. Thereafter unpaid leave applied which commenced on 12 July 2021 as the Complainant was paid an additional two weeks due to a payroll error which was not taken back from him. It is the position of the Respondent that the Complainant was paid in accordance with its sick pay scheme and that no unlawful deductions were made. |
Findings and Conclusions:
CA-00042700-008 The legal provisions in relation to unfair dismissals are set out in the Unfair Dismissals Act [1977-2017] and for the purpose of this decision I consider the following provisions relevant: Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows: ““dismissal”, in relation to an employee, means – a) the termination by his employer of the employee’s contract of employment with the employer….. 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 I 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 claiming that he was constructively dismissed and that he had to leave his job due to the conduct of the Respondent. Accordingly, I must consider whether or not on the balance of probabilities, there was a dismissal in accordance with the provisions of section (b) above. There are two tests to establish if a constructive dismissal occurred – the ‘contract test’ – i.e. that there was a breach of the contract of employment, such that an employee is entitled to terminate his/her employment and the ‘reasonableness test’ – i.e. that the behaviour of the employer was so unreasonable that the employee was entitled to terminate his/her employment. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that a complainant could not fairly be expected to put up with it any longer. These tests were enunciated in Western Excavating (ECC) v Sharp [1978] ICR 221 and have been relied on by the Labour Court. For example in NCBI v Ms Mary Cawley [UDD2138] the Court explored whether there was “any fundamental breach going to the root of her contract” such that it was reasonable for the Complainant to terminate her contract and/or whether the employer conducted its affairs “in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer, [and] if so…is justified in leaving”. By the same token, a complainant is under the burden of establishing that he/she has conducted him/herself reasonably in terms of affording the employer the opportunity to address the issue(s) which ultimately led to the termination of the employment. In that regard, in referring to the need to utilise established internal grievance procedures, the Employment Appeals Tribunal held as follows in Beatty v Bayside Supermarkets [UD142/1987]: “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases…”
In relation to this matter, I have carefully considered the submissions, the sworn evidence, the correspondence and the case law cited. For the most part the facts of the case are not in dispute – particularly in terms of dates, documentation and meetings. From my consideration of all the information, I am satisfied the Complainant found himself in a difficult position as a result of having to work in a separate area from his colleagues but particularly from 19 January 2021 when the Respondent required face masks to be worn. That being said, the evidence is clear that the Complainant did not initiate any internal Grievance Procedure notwithstanding the availability of this procedure in the Company Handbook. Further the Complainant did not follow the advice of his managers to refer his complaints to HR nor did he instigate any complaint after the 4th March 2021 when the HR Manager sent him copy of the Respondent’s Harassment and Discrimination procedure. In all the circumstances, I am not persuaded by the Complainant’s reasons for not making a formal complaint in early course which I consider unsatisfactory. Whilst the Complainant did engage with the Respondent’s investigation which commenced on the 5th May 2021, he resigned on the very day the Investigator’s report was issued without providing any response or observations on the report and without appealing it.
I am not disputing the Complainant’s bona fides nor the impact of the situation on him, however, I consider that he acted unreasonably in terms of not affording the Respondent the opportunity to fully address his issues/complaints prior to his resignation. Indeed from the evidence – including the Complainant’s own evidence – I am satisfied that he had no intention of returning to the workplace after he left on the 26th January 2021. The Complainant accepted in evidence that he considered himself still employed during the period of unpaid leave and in any event he was restored to the payroll with effect from the 2nd March 2021 and was then placed on sick pay which lasted up to his resignation.
In all the circumstances, I consider that it was very unfortunate matters escalated to the point where the Complainant considered he had no option but to resign his employment with the Respondent. However for the reasons outlined, I consider that his resignation was precipitous and that the Complainant has not discharged the burden of proving he was constructively dismissed. Based on the same reasons, I consider that the Respondent has discharged the burden of proving that it did not unfairly dismiss the Complainant as per Section 6 of the Unfair Dismissals Act [1977-2017]. CA-00042700-003 Section 8 of the Industrial Relations (Miscellaneous Provisions) Act 2004 prohibits victimisation in the following specified circumstances: “8.—(1) This section applies where it is not the practice of the employer to engage in collective bargaining and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and— (a) a trade union takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or (b) such procedures have been invoked by a trade union in relation to a trade dispute, or (c) an employee intends to request the trade union of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union intends to make such a request, or (d) such a request by a trade union has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or (e) the Court determines that those requirements have been met and either— (i) that investigation is being or has been carried out, or (ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.
(2) Where this section applies, none of the following— (a) the employer, (b) an employee, or (c) a trade union of which an employee is a member,
shall victimise an employee or (as the case may be) another employee in the employment concerned on account of— (i) the employee’s being or not being a member of a trade union, or (ii) the employee’s engaging or not engaging in any activities on behalf of a trade union .
(3) In this section “victimise”, in relation to an employee, means to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her well being and includes any act specified in a code of practice, prepared under section 42 of the Industrial Relations Act 1990 in relation to conduct prohibited by this section, to be an act falling within the foregoing expression but does not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001.” In terms of representation at meetings in the workplace, I am satisfied that it is standard practice that representation maybe in the form of a trade union official or a colleague. In this regard, I am satisfied that the evidence shows there was no trade union presence in the workplace and that the Complainant did not seek trade union representation at any stage. Whilst in hindsight, the Respondent could perhaps have considered being more flexible in relation to the issue of representation, nonetheless it’s stipulation in this regard complied with its own policy. Further, the Respondent made clear in correspondence that any meeting the Complainant was requested to attend was not part of any investigation or disciplinary process. In all the circumstances, I am satisfied that the Complainant has not outlined circumstances where the provisions of this Act are applicable, nor has he made out a case that he was penalised by virtue of being placed on sick pay or shown that he was victimised contrary to the provisions of the Act. CA-00042700-004 “Disability" is defined in section 2 of the Employment Equality Act [1998-2022] as meaning: “(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurementof a part of a person's body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.” Section 6 of the Employment Equality Act [1998-2022] defines discrimination as follows: “6(1)(a)…..discrimination shall be taken to occur where…a person is treated less favourably than another is, has been or would be treated in a comparable situation on any of the grounds specified…..
6(2) As between any 2 persons, the discriminatory grounds….are –
6(2)(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),” The Complainant submits that his medical condition constitutes a disability within the meaning and contemplation of the foregoing section 6. This is not disputed by the Respondent. From the medical evidence submitted by the Complainant to the Respondent and in light of the reports of the Occupational Health provider, I accept that at the relevant time, the Complainant was suffering from a disability. The issue that falls to be considered therefore is whether the Respondent discriminated against the Complainant arising from his disability or whether it failed to provide him with reasonable accommodation. Section 16 of the Employment Equality Act [1998-2022] states as follows in relation to reasonable accommodation: “(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual – (a) will not undertake …..the duties attached to the position or will not accept…..the conditions under which those duties are, or may be required to be, performed, or - (b) is not….fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed. ...
(3)(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer. 3(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability— (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer”. The scope of the duty on an employer is therefore determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case. The leading authority on the obligation of an employer to provide reasonable accommodation is the decision of the Supreme Court in Nano Nagle School V Daly [2019 IESC 63] which endorsed an approach where the duties and responsibilities of the employee should be assessed and that preferably there should be consultation between the parties in order to facilitate the putting in place of appropriate measures. Section 85A of the Employment Equality Act [1998-2022] provides that a complainant must set out a prima facie case of discrimination – ie he/she must establish facts from which discrimination may be inferred. Where a complainant discharges this burden, the onus is then shifted to the Respondent to prove to the contrary. The Labour Court considered the extent of the evidential burden a complainant must discharge in order to establish a prima facie case of discrimination, in Southern Health Board v Mitchell [DEE011 [2001] ELR 201]. In that case it was held that the first requirement is that the complainant must establish on the balance of probabilities, the primary facts from which it may be presumed that the principle of equal treatment has not been applied to them. In Melbury Developments Ltd v Valpeters [2010] ELR 64 it was held that "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn." In the instant case, the sequence of developments shows that initially and for approximately three months the Complainant was allowed wear a visor instead of a face mask and by and large this was deemed adequate. In January 2021 the Complainant’s work area was moved some two metres up the work floor to facilitate social distance. The Complainant stated that during this time he was subjected to taunts and offensive name calling by fellow employees. The crunch came on 19 January 2021 when the Respondent insisted on all employees wearing a face mask. On 21 January 2021, the Complainant produced a letter from his GP to the effect that he suffered from a breathing difficulty which would be adversely impacted by wearing a face mask. The Respondent then sought the opinion of its Company Doctor who met with the Complainant and determined on 25 January 2021 that the Complainant had no lung abnormality and that in his opinion, there was no good reason he could not wear a mask. This led to the meeting of 26 January 2021 in the course of which the Complainant was advised that he would be regarded as making himself unavailable for work if he did not comply and wear a face mask. The Complainant left the workplace that day, was taken off the payroll and did not attend a meeting with the Respondent until the 2nd March 2021. At this meeting, the Complainant provided a further letter from his GP in relation to his breathing difficulty dated the 9th February 2021. The Complainant formally outlined his complaints of bullying and harassment at this meeting. Arising from the conflicting medical evidence between the Company Doctor and the Complainant’s GP’s letter of the 9th February 2021, the Complainant was sent for assessment by an Occupational Health Provider – firstly on the 9th March 2021 and subsequently on the 13th May 2021. In addition to the foregoing, I have also considered the following: · The Complainant’s contract of employment which stipulates that an employee, if so requested, must participate in a medical examination by a practitioner nominated by the Respondent; · The sequence of correspondence between the HR Manager and the Complainant including the letter of the 29th January 2021 which sought a meeting with the Complainant “to discuss this matter with the view to finding an agreeable solution”; · The subsequent communications of a similar nature which invited the Complainant to meet with the Respondent in February 2021 – ie after the date of his second GP letter of the 9th February 2021; · That the Complainant only furnished the Respondent with his second GP letter of the 9th February 2021 at the meeting on the 2nd March 2021; · The reports of the Occupational Health Provider which determined that the Complainant had “a medical reason for being unable to wear a mask” but also stated that he was not fit for work because of that, that he should avail of sick leave but that he was fit to engage in discussions regarding workplace issues. I note that in the second report, the Occupational Health Provider stated that “[Complainant] does not believe that under any circumstances, he could currently return to work as he feels the environment would have a negative effect on his mental health”. The second Occupational Health report of the 13th May 2021 again determined that the Complainant was unfit for work but was fit to meet and engage regarding workplace issues. The Occupational Health provider was also seeking a further review after a few months; · The impact of Covid-19 on the Respondent’s workplace which necessitated the introduction of health and safety measures. In light of the foregoing, I am satisfied that the requirement for the Complainant to wear a face mask was something which was not possible for him to resolve at one meeting or in one day – especially in light of the conflicting medical opinions. Whilst the Complainant felt he could not continue to work after the 26th January 2021 due to the mask requirement, he should have engaged with the Respondent, as requested, at the earliest opportunity in order to address the medical conflict and/or seek reasonable accommodation. Whilst he did eventually engage with the Respondent on the 2nd March 2021, he did not seek a return to the workplace at any stage and his evidence in the course of the adjudication hearing confirms this. By virtue of the Complainant’s continued absence from the workplace including on sick leave, I am satisfied that the issue of reasonable accommodation could not have been addressed in any practical manner. In relation to the name calling, taunts and bullying of the Complainant because he could not wear a mask, by any standard this was totally unacceptable. That being said, I am of the view that there was an onus on the Complainant to pursue these complaints in accordance with the Respondent’s internal procedures. In this regard I note the opinion of the Occupational Health Provider that the Complainant was fit to engage in such discussions. I am satisfied that the first time the Complainant formally raised his complaints was at the meeting of the 2nd March 2021 and that the Respondent appointed an external Investigator to deal with the complaints. Furthermore, on the 4th March 2021 the Respondent furnished copy of its Harassment and Discrimination Procedure to the Complainant and requested him “to review the enclosed policy and advise [HR Manager] on how [he] would like to proceed, i.e. by way of the informal or formal procedure or alternatively by way of mediation”. Whilst the Complainant did not engage with this procedure or initiate a complaint against any employee pursuant to that procedure or the Respondent’s Grievance Procedure, he did participate in the investigation by the external Investigator. In the course of his evidence at the adjudication hearing, the Complainant stated that he did not wish to pursue any complaint and he resigned on the day the Investigators report was issued. Lastly I note that the Respondent referenced another employee who had similar difficulties to the Complainant but stated that that person eventually wore a mask. Whether or which, I consider that the Complainant has not identified any comparator who was allowed continue work without a face mask or any comparator who was treated differently. In light of the foregoing, I conclude that the Complainant has not established a prima facie case of discrimination or a failure on the part of the Respondent to provide reasonable accommodation. CA-00042700-006 Section 1 of the Payment of Wages Act [1991-2017] sets out the definition of wages as “any fee, bonus or commission, or any holiday, sick and maternity pay, or any other emolument, referable to [the employee’s] employment, whether payable under [the] contract of employment or otherwise…”. Section 5(1) of the Payment of Wages Act [1991-2017] sets out the parameters according to which deductions may be made from an employee’s wages: 1) “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— a. the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, b. the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or c. in the case of a deduction, the employee has given his prior consent in writing to it.
2) An employer shall not make a deduction from the wages of an employee in respect of— a. any act or omission of the employee, or b. any goods or services supplied to or provided for the employee by the employer thesupply or provision of which is necessary to the employment, unless— (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and (iii)……. (iv)……. (v)……. (vi)……. (vii)…… Section 5(6) addresses the circumstances in which wages which are properly payable are not paid as follows: “5(6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”. It is clear that the Act permits a deduction from an employee’s wages in order to comply with a statutory requirement, such as tax or PRSI or where such deduction is explicitly provided for in the contract of employment. Having carefully considered the evidence and submissions, I am satisfied that the Complainant was not subjected to an unlawful deduction of wages contrary to the provisions of the Payment of Wages Act [1991-2017], for the following reasons: · The Complainant was employed – by virtue of his contract of employment – to perform a range of duties and responsibilities within specified hours and at a specified location. His salary and benefits accrued as a consequence. I am of the view that as the Complainant did not attend work or engage with the Respondent between the 26th January 2021 and the 2nd March 2021, he put himself in the position of not being paid during that period. I am satisfied that the Respondent’s approach in this regard was clearly notified to the Complainant in advance. In the circumstances, I accept the position of the Respondent that as the Complainant’s wages were not properly due to him during the period 26th January 2021 – 2nd March 2021, there was no unlawful deduction during that period; · Following the determination by the Occupational Health Provider that the Complainant was medically unfit for work, he was placed on sick leave with effect from the 29th May 2021. From that date, the terms of the Respondent’s sick pay scheme applied which provided that the Complainant was paid 50% of his normal basic take home pay. The Complainant has not put forward any argument that he was not paid in accordance with the terms of the sick pay scheme. In circumstances where the Complainant was paid in accordance with his contractual terms relating to sick pay, I am satisfied that there was no unlawful deduction of wages from the 29th May 2021 until the Complainant’s resignation. |
Decision:
Section 41 of the Workplace Relations Act [2015 – 2021] requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Act [1977-2017] 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.
Section 79 of the Employment Equality Acts [1998 – 2022] requires that I make a decision in relation to the discrimination complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00042700-001 Withdrawn
CA-00042700-003 For the reasons outlined this complaint is not well founded.
CA-00042700-004 For the reasons outlined this complaint is not well founded.
CA-00042700-005 Withdrawn
CA-00042700-006 For the reasons outlined this complaint is not well founded.
CA-00042700-007 Withdrawn
CA-00042700-008 For the reasons outlined this complaint is not well founded. |
Dated: 04/September/2023
Workplace Relations Commission Adjudication Officer: Anne McElduff
Key Words:
Constructive Dismissal, Payment of Wages, Representation, Disability Discrimination |