Complainant

Respondent

Parties

James  Byrne

Cbre Gws

Representatives

Derek Beegan Connect Trade Union

Roy Horan IBEC

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-00047863-001

29/12/2021

The Complainant was employed with the Respondent as a maintenance technician from 3rd July 2017 until 30th June 2021.

The Complainant claims he was forced to resign from his employment due to ongoing difficulties and non-compliance on the employer’s site. He previously worked on another site for the Respondent for 2 years and 9 months and was made redundant in March 2020. He was offered a transfer to the site in Leopardstown in a more junior role with a 20% pay cut. He started on the Leopardstown site on 16th March 2020.

On 20 November 2020, he met with a member of management regarding roof works to be performed by the external contractor the next day. The Complainant was supervising the works and was prohibited from going on to the roof by Health & Safety. The Complainant raised his concerns with Mr. Horgan Facilities Manager that he could not supervise the contractor, the roof being slippy, the contractor working alone as there was no communication, and a non-conforming ladder to the roof. The Complainant’s concerns were ignored. The work went ahead with no working at height permit issued, no lone working arrangements, no rescue plan and monitoring of the contractor. Photographs found the contractor did not wear a harness. Concerns are noted by the Complainant in the sub-contractor monitoring record. The Complainant has an obligation to report any defects in equipment or the workplace which might be a danger to health and safety.

The employer is required to identify any hazards from the workplace, assess the risks from any hazards, identify the steps to deal with any risks. The issues were brought up with the Complainant in front of the whole team on a call, when Mr. Horgan asked did the contractor wear a harness. The Complainant reminded him about the constraints he was under. Mr. Horgan told him to “shut up” and took the rest of the conversation offline. The Complainant was upset and humiliated. Mr Begley called the Complainant and said he heard Mr. Horgan say shut up. A meeting was arranged to clear the air, but Mr. Horgan did not admit any wrongdoing. The Complainant refused to attend further calls if he was going to be abused. The Complainant was asked to attend a meeting about roof access and health and safety. He was not informed it was a disciplinary meeting. He should have been told it was a disciplinary meeting in advance, and of his right to union representation in line with fair procedures and Statutory Instrument 146 of 2000.  Management did not follow their own procedures and correct documents were not furnished to the manager hearing the appeal. The Complainant was unaware any disciplinary action was taking place until he received a verbal warning. The Complainant appealed the six month verbal warning which was not overturned. The company phone was not active at the time of the works.

The Complainant became very concerned about ongoing non-compliance for permit works. On 2nd February 2021, this came to a head when he arrived to supervise works when he found fire detection devices had been covered up in a plant room and correct permits not in place. The Complainant escalated this to HR and Health & Safety. The Complainant’s concerns were not acted upon. In March 2020, the Complainant received emails threatening disciplinary action to which he replied and no action was taken. When the Complainant received further complaints in April 2021, he involved his trade union. The complaint was not upheld, and he was exposed to bias. The complaint failed as the external contractor had bypassed all the inductions and procedures on site. The Complainant was exhausted by being ostracised and found his name was used to close off work on the system which he did not approve. He felt he had no option but to resign due to the impact on his health.

The Complainant has financial loss of €6,757.52 as he obtained employment shortly after leaving the role.

The Respondent says it has complied fully with its obligations and rejects any alleged breach of the Complainant’s rights. The Respondent followed the correct procedures and treated the Complainant reasonably. The Complainant has a disciplinary and grievance procedures which are available for all staff on the company intranet.

Complainant was employed with the Respondent since 3rd July 2017. He was made redundant and offered redeployment as a Mechanical Technician from March 2020 reporting to Mr. Begley. On 12th January 2021, the Complainant received a verbal warning for breach of Quality, Health, Safety and Environmental Standards as he allowed a contractor to carry out work on the roof without appropriate Personal Protective Equipment i.e a Harness. The Complainant appealed the sanction which was not upheld. The Complainant was advised of his right to lodge a grievance in relation to other issues (permits system and roof access) raised at the appeal meeting.

On 19th April 2021, Mr. Begley alleged the Complainant displayed poor behaviour in a conversation with him on 2nd April 2021 when he accused Mr. Begley and other staff of “stitching him up” over the roof issue loudly and described the conversation as intimidating. Mr. Begley also alleged poor behaviour by the Complainant in a conversation with an external contractor on 10th April 2023 when he asked the contractor to return to complete paperwork and do a full site induction and complained about Mr. Begley and the Respondent.

The Complainant said during the conversation, he was complaining about overtime the following Saturday and annual leave requests as he was entitled to ten consecutive days, and an email threatening disciplinary action in relation to overdue tickets. The allegations were disputed by the Complainant who said Mr. Begley said he should go to another site if he was not happy. He said he had been stitched up as the truth had not come out in the disciplinary process and no lone worker alarm had been given to him. This was causing him stress. The Complainant did not agree with Mr. Begley’s version of events regarding the contractor. The Complainant said he required the contractor to do the paperwork and induction as he did not have access to a drive showing which engineers had been inducted previously. The Complainant said he did not proceed with a grievance due to his fears of retaliation.

On 17th May 2021, the Respondent emailed the Complainant suggesting the investigation be suspended and mediation be used to resolve any issues. On 28th May 2021, the Complainant submitted his resignation with one month’s notice stating mediation “would serve no purpose due to the ongoing non-compliance on site which had caused him great stress and anxiety”. The Respondent encouraged the Complainant to consider mediation, the policies and procedures and the Employee Assistance Program. On 31st May 2021, the Respondent emailed the Complainant and set up a call to discuss the resignation and complaints. The Complainant was not willing to engage in any method of resolution.

The Respondent submits that the test for constructive dismissal has not been met by the Complainant. The Respondent operated within the terms of the contract of employment and did not violate any term or policies. There was no repudiation of the contract. The Respondent says it acted reasonably and fairly in accordance with its policies and relies on McCormack v Dunnes Stores UD 1421/2008 when the Employment Appeals Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The Respondent says the Complainant did not invoke the grievance procedure to notify the company of his concerns in advance of his resignation, and acted in a hasty and unreasonable manner and relies on Conway v Ulster Bank and Travers v MBNA Ireland Limited UD720/2006.

The Respondent refutes the Complainant’s resignation was in part due to failure to address concerns re health and safety on site. The site received 99% in a Quality Health Safety and Environment audit in 2020 and this was shared with the Complainant. The Respondent has a formal hazard reporting procedure and the Complainant was trained on this process but only used the portal on two occasions to register concerns, which were investigated and dealt with by the Quality Health Safety and Environment Department. The Respondent requests the complaint is dismissed.

I heard and considered the parties submissions and evidence given at the hearing.

The Complainant claims unfair dismissal under S 6 of the Unfair Dismissals Act 1977-2015 and that he has been constructively dismissed under Section 1 of the Act. The Act defines “dismissal” in relation to an employee as:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in 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”.

In a claim of constructive dismissal, the burden of proof is on an employee to prove on the balance of probabilities that firstly, the employer has breached his contract and as a result the employee is entitled to resign or secondly that it is reasonable for the employee to resign given the conduct of the employer.

The Respondent has a disciplinary policy in place which sets out the stages of the formal disciplinary policy. This provides for a formal and informal disciplinary process stating:

2.3 “Minor conduct issues can often be resolved informally between you and your line manager where appropriate. These discussions should be held in private and without undue delay whenever there is cause for concern. Where appropriate a note of any such informal discussions may be placed on your personnel file. In some cases, an informal verbal warning may be given which will not form part of your disciplinary records.”

Work took place on the roof of the sixth floor of the office on 21st November 2020. The Complainant was on site to monitor the contractor. He said he was unable to monitor the lone contractor as he did not have access to the roof. The ladder was non-compliant as it did not have a safety hoop at the top. There were no guide rails on the roof. He had restricted visibility and no method of contacting the contractor other than shouting at him. After photographs found the contractor not wearing a harness on the day, the contractor said he told the Complainant he could not carry out the work with the harness due to the electrical charge. The Complainant gave evidence this never occurred. He was not aware the contractor did not wear a harness, as the contractor had this in a backpack which he took to the roof.

The Complainant says he raised his concern with the Manager Mr. Horgan on 20th November 2020, the day before the works were carried out. He said he was unable to monitor the roof surveyor as he did not have access to the roof. Staff were not allowed access the roof. The Complainant noted a non-conformance in writing on the Sub-contractor monitoring record of 21st November 2020, that he cannot access place of work due to restricted poor access. The Complainant said he was over-ruled and told to proceed.  After it came to light, the contractor had not worn a harness, the Complainant raised the issues on a call with other staff and was told to “shut up” by Mr. Horgan.

Mr. Horgan said facilities work was made more difficult with the requirement to physically isolate during the pandemic. He gave evidence of his discussion with the Complainant, and recalled the Complainant was not happy to use the ladder, but he said there was no reason not to use the ladder as there was a ladder tag. Mr. Horgan went up the ladder to have a look. He said he made it very clear to the Complainant the contractor must wear the harness as it was six storeys, and be checked every thirty minutes. He was not aware the Complainant did not have a phone to contact the contractor. The Complainant submitted he could not make contact with the contractor as the contractor was wearing earplugs as he was carrying out a spark test. There were external noises and he could only see 10/15% of the roof from the doorway and how could he ensure the contractor wore the harness if he had no visibility. Mr. Horgan conceded that in hindsight he might have done things differently, but he was clear the harness was to be used by the contractor.

Following the incident, the Complainant attended a meeting on 11th December 2020 but was unaware this was part of an investigation into disciplinary issues, or any disciplinary process was ongoing. On 12th January 2021, He received a verbal warning for a period of six months as the contractor did not wear a harness when carrying out the work. In accordance with SI 146 /2000 Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 and fair procedures the Complainant should have been well aware disciplinary action was being considered in advance of any discussion of the incident of 21st November 2020 so he would be given the opportunity to bring a colleague or union representative to the meeting.

The Complainant was advised during the appeal of his right to pursue complaints raised through the formal company grievance procedure. He said he did not pursue a formal grievance as he was afraid of retaliation in view of Mr. Horgan’s reaction. The Complainant notified an internal ethics helpline of his concerns and had a zoom call with the representative on 17th May 2021.

The Health & Safety Authority’s Guidance on ladders in the workplace from the Safety Health & Welfare at Work (General Application) Regulations 2007 recommend that workers do not work on the top three steps of a ladder and three point contact is required (three of two feet and hands) at all times. Working at height to be planned in advance and to take account of supervision of workers that may be necessary.

I accept the evidence of the Complainant regarding the incident on 21st November 2020 which is supported by his handwritten note. The imposition of a verbal warning on the Complainant without his knowledge of any disciplinary process, and in light of the dispute on the facts was unwarranted and in breach of fair procedures.

The Complainant set out his concerns about non-compliance on health and safety issues at the appeal, which was unsuccessful. He was subject to an investigation for alleged breach of the company code of ethics some months later, which was paused to allow for mediation. However, the Complainant said the issues were unresolved and found his name was used to sign off work not approved by him. The Complainant felt this was a breach of trust and meant he could no longer remain in the organisation.

The Complainant raised a number of issues of concern in the appeal process and through the internal ethics reporting mechanism of the company and I am satisfied the Respondent was aware of his concerns. In the circumstances, I find the actions of the Respondent were unreasonable, and breached fair procedures. The Respondent failed to address the concerns raised by the Complainant and in all the circumstances, I find the Complainant was constructively dismissed. The appropriate redress is compensation. The Complainant has financial loss of €6,757.52 and I direct payment of this by the Respondent.

I find the Complainant was unfairly dismissed.  The Complainant has financial loss of €6,757.52 and I direct payment of this by the Respondent.

Health & safety concerns constructive dismissal