Complainant

Respondent

Parties

Ciaran  Nangle

Dublin City Council

Representatives

  Self-Represented

 Simon Brock, Employee Relations Unit, Human Resource Department

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-00060620-001

19/12/2023

The Complainant is seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977 (as amended) and has submitted that he had to leave his job due to the conduct of his line manager.

In the Complainant’s own words he stated that:

After being employed by the Respondent from October 2015 and having no issues which can be backed up by PDP records as of the 7th July 2022, I firmly believe my line manager began a 12 month period where he bullied me. On the 7th July 2022 I received an e-mail with the subject “informal meeting”. 17 minutes later I received a second e-mail pulling this from 12:00 pm To 10:30 am.

Upon returning from annual leave on the 5th July 2022 my line manager indicated that he wanted to discuss something with me that Thursday. I offered to sit down there and then and he declined immediately. No indication of this to be an informal meeting was stated by him and the manner of which he had put this to me verbally left me very anxious over the next 48 hours. Over these 48 hours I felt that my line manager was very direct with me and something was off. I note that my line manager is well known for a poor demeanour and comes across ignorant which is well known on Floor 7 - the traffic department. Thursday arrived and the meeting took place. During the meeting my line manager claimed that two companies and one member of the Respondent’s staff verbally complained to him regarding my interaction with them. Such allegations should be made known to the person being accused and they should be entitled to know the exact nature of the allegation and who made the allegation in order for them to defend their position. My line manager was very vague with the details and was not prepared to share who made the complaints, therefore I would be of the opinion that these are anonymous and have no merit in them.

Since commencing my employment with the Respondent I have dealt with numerous companies and contractors which I have had a good relationship with, to my knowledge. I have also had a good relationship with my colleagues and to my knowledge none have had any issues with me. On this I will add, as I did to my line manager in this meeting, that if anyone had any issues with me or how I conducted myself with them that I would be more than happy to meet, discuss and try and resolve.

In my opinion, the Respondent’s member of staff who made the complaint was a personal friend of my line manager and due to an e-mail sent by me expressing my frustration that the person did not carry out their work in line with health and safety with regard to MOP this upset them and they complained to my line manager direct as the timelines match.

With regards to the external companies, my line manager claimed that I was irate with one of them. On this I will note that I treat everyone as I would expect to be treated, which is with courtesy and respect. The other company, my line manager claims that I threatened to revoke work from them. On this I will say firstly that this has never happened when I was employed by the Respondent nor do I have the authority to revoke work. Secondly, I will add that I would never act as if I had the authority.

During this meeting I was so taken aback by these claims that agreeing to improve my work ethic was done under duress as to remove myself from the uncomfortable environment that my line manager had placed me in. That evening, I received an e-mail from my line manager which I have submitted to the WRC regarding our “informal meeting”. It is my understanding that in doing so, my line manager made things formal. The Respondent’s Employee Relations representative, who I met with shortly before resigning, agreed with me verbally. I note that HR were not aware of this until I raised this with the Employee Relations representative. At the end of the e-mail sent to me, my line manager outlined that there would be an informal review after three months, which did not happen. I responded to this e-mail, which I also submitted to the WRC, and I believe it was very clear from this point that my line manager was now monitoring and micromanaging me. My line manager tasked me with what I feel was an unreasonable amount of admin work considering my role was more site base than office based. I would like to note that this was not the case with my two co-workers.  My line manager now wanted images from every site that I visited and it was evident that this was proof of carrying out my work.

My line manager also outlined that I was not to work remotely at any stage and was to attend the office every morning which was not the case for my two co-workers who could work remotely at their discretion. Again, I agreed to this under duress. Over the next few months I carried out all additional tasks to the best of my ability while under severe mental strain as a direct result of my line manager's demeanour to me, unrealistic workload and the fact that I was being treated differently to my colleagues. I was dreading attending the office every time and was made to feel very uncomfortable by my line manager as he would be joking and having small talk with my two co-workers however I felt that when joining in on conversations he was nothing short of cold and ignorant to me.

In this industry, a great deal of work requires execution after hours. My overtime with regard to out of hours work was now restricted in order for me to attend the office at 8:00 am every morning. My line manager had made it clear to me that he did not want me working past 11:00 pm. On this I will note that this was not the case for my two co-workers as they could work throughout the night and not have to attend work the following day. Also, I will note that you are entitled to 11 hours break between work that I did not contend to ever. A co-worker who was on the same level and same grade as me was permitted to work remotely at his discretion, which I was point blank refused by my line manager to do so.

At this point it was now it was becoming evident to other staff members on Floor 7 that my line manager was treating me differently and poorly as opposed to my co-workers. Many people on Floor 7 approached me about this and there were many discussions had out of concern for my well-being. Staff members of the Respondent’s maintenance company also approached me out of concern for my well-being as they could see the effects this was having on me. I would like to add on the subject of overtime, I would regularly take after our phone calls from the maintenance company and on numerous occasions this outside contractor informed me that I was the point of contact for after hours however I was not made aware of this by my line manager. A staff member verbally told me that he heard my line manager arranging an availability allowance for one of my co-workers to be the point of contact. I am not sure of the exact details surrounding this, although I can confirm that I was not receiving such allowance nor did I claim any overtime for receiving such calls. One particular incident I had worked until 1:00 am and while on site at 1:00 pm the following day, I received a very aggressive phone call from my line manager because I was not in the office at 8:30 am. From here, my line manager made it clear that I was on an overtime curfew. At this point, my mental health was rapidly deteriorating as a result of how my line manager was treating me and this was affecting not only my work but my home life and relationships.

I discussed my line manager's behaviour towards me, which I believe is bullying, with my partner and parents. After three months had passed, my line manager did not have the mentioned review and I was quite frankly in fear of approaching him on it believing this was intentionally not had in order to have me on tender hooks. Although my line manager and I had the meeting one to one, I feel that my two co-workers were well aware as they began distancing themselves from me. I was left out of essential equipment training and when I challenged my line manager about this his reason was “I think you have enough to be doing and I didn't want to disrupt you”. I do not believe this because my two co-workers were included in this training and failed to mention it and I feel they were instructed not to share with me. This is in the realm of withholding information.

I would like to note that my line manager never notified his staff when taking annual leave which  left me in a position where if someone was looking to contact him through me I could not even confirm if he was working or not. One particular incident was when I asked my co-worker whether my line manager was away because a member of the Respondent’s staff was looking to contact him and my co-worker replied that he had no idea. No more than 5 minutes past and the co-worker opened an e-mail from my line manager sent the previous Friday that my co-worker had opened prior to our conversation. The e-mail from my line manager stated “Can you address the following issues while I am away next week”. This reinforces that conversations were had behind my back and would suggest I was not to know that my line manager was off work. Again, this is intentionally withholding information just from me by both parties.

Coming towards Christmas 2022 there was still no review and I contemplated approaching my line manager on this. I note at this time my mental and physical health were suffering. Subsequently, I never did build up the courage to approach my line manager. After eight months, my two co-workers and I received an e-mail on the 21st March 2023 to notify us of an informal review meeting the following day. This was short notice and I believe that my line manager was now fabricating this in order to attack me again. The reason I believe this was fabricated is because (a) one of my co-workers was being reviewed by my line manager and they are of the same level which is not standard protocol within the Respondent and (b) my meeting time was scheduled last and I feel that this was to give my line manager more time to open back up the issues from the previous meeting. I attended the meeting and my line manager proceeded to discuss the issues raised in the meeting we had eight months prior. I interrupted him and stated that as far as I was concerned, due to him not having the three-month review, that the matter was closed. He still carried on discussing the said issues and the fact that he believed my standards had fallen short. I will note that up to the 7th July 2022 he had no issues with my work and this can be clarified with PDP reviews. My line manager stated in this meeting that it would be him who would decide if my interaction since July had been good. I would have dealt with contractors and companies without him present which would suggest by him saying that this that it was he who was making me aware that he would be judge, jury and executioner in this situation. My line manager made it clear that he did not trust me, that my availability was poor and even threatened me by saying “you know I can check the trackers on the van”. I challenged my line manager on his comment regarding my availability and asked him to provide only one example in the seven years under him which he could not do. He then retracted that statement which I believe was because I challenged him and this was not something he was used to. I expressed my disappointment at how he treated me over a period of 12 months in contrast to how he treated my colleagues. He had no response to this. I then challenged him regarding remote working and stated that my two co-workers could work remotely at their discretion, he immediately said I could work one day remotely and I stressed that my colleagues were not restricted to one day remote working. This to me showed that he was not treating his team members equally and he was beginning to realise that I was very aware of this, which shows by him changing the parameters. I also stated that I thought that he handled the situation with me completely wrong and that I had made a good effort to repair our working relationship, however there was no effort made on his behalf.

After this meeting my line manager sent me an e-mail and only included what he had raised in this meeting. This is not how to acknowledge or record reviews and would be considered biased. At the end of this e-mail he stated “we will have a review of your progress at the end of June and see where we go from there”. I feel by him not notifying HR and implementing a 3-month review probation period that not only was he not following procedure but he was also acting unlawfully. I responded to this e-mail and included the concerns that I had raised to ensure transparency.

At this point I was really struggling mentally and promised myself to ensure to follow up on this review as awaiting these reviews was causing me anxiety and pressure to which I believe was his intention. In hindsight, reporting these incidents to HR would have made my work life less toxic but I believe that nothing would materialise as it was common knowledge that my line manager had major influence on senior members of staff.

Over the next three months I carried out my tasks and still found my line manager's attitude towards me had not changed. During this period my grandmother passed away and I had texted my line manager to notify him to which I got no response. When I attended the office his first interaction with me, instead of offering condolence, was to tell me I could only take two days bereavement leave. This in my opinion is disgraceful and shows the malice intent that my line manager had for me. Out of frustration I went to local HR to verify this and it was confirmed that I could take five days leave which I felt I could not take. I told my line manager this in the office and I feel because I did this and other staff members heard this, he reacted by saying “I would have given you any amount of days off that you needed”. I believe this to be a lie in an attempt to show himself in better light in front of other staff members.

I note that although I could work remotely one day a week, my line manager still had to invoke terms and conditions. For example, on one occasion I asked my line manager to change my work from home day from Friday to Thursday on a particular week and his response was “I will have to see how I am working”. I had to pursue an answer and eventually he agreed with conditions that can be seen from text screenshots that I submitted to the WRC.

On the 6th July 2023, I emailed my line manager and requested that we have our “review”. After one day of remote working and two full days in the office sitting adjacent to my line manager, there was no verbal or written response to my request. At this point I was at breaking point and could not endure anymore of this individual's behaviour towards me. I had now decided that it was best for me to resign from a career that I loved and wanted to progress in for the good of my mental health and my relationships.

On the 11th July 2023 I met with the Employee Relations representative and explained the full situation. She asked me would I go down the grievance route. She stated twice during this conversation that this could be seen as constructive dismissal. I did not feel that I could endure the stress and mental torture and just wanted to be removed from the whole situation. She urged me to take time off for my own good and reconsider resignation. I went straight to my GP and was signed off for work related stress. I texted my line manager to notify him as advised by the Employee Relations representative and he then tried to call me. I responded via e-mail, again advised by the Employee Relations representative and when I did my line manager responded within minutes stating that he was seeing if I was OK. I firmly do not believe this and feel he was aware that I was now off with stress essentially caused by him. This is my opinion considering his response to my e-mails were so selective. During the period I was off I made the decision to resign and it is not one I made lightly. My partner is here with me today and this has also affected her and put strain on our relationship seeing how it has affected and changed me. This still affects me to the day. 

I could note many more interactions to suggest that my line manager had been bullying me for 12 months, but without proof other than records I kept, I feel they would be seen as irrelevant. I would like to thank the adjudicator for giving me the opportunity to voice my concerns as I have no legal representative here today with me today. I do hope that I have articulated all my points clearly here today. I would request that the adjudicator disregard the Respondents e-mail claiming no merit in my complaint for the reasons I have stated today and the fact that their submission was outside the parameters of the WRC guidelines showing no regard for these guidelines. On a final note, I would like to encourage the Respondent, regardless of today's outcome, to consider all the points that I have made as I feel that this is not an isolated incident with this individual. It is common knowledge that outside contractors have had staff members leave as direct result of my line manager's interaction with them.

Introduction

The Complainant was employed by the Respondent as an Assistant Traffic Officer between 5th  October 2015 and 11th September 2023. The Complainant resigned from the Respondent.

Background to Complaint

The Complainant claims that he has been unfairly dismissed by his employer, as the Complainant was not dismissed it is presumed that he is claiming that he was constructively dismissed by his employer. The Complainant claims that he has been the subject of treatment by his manager that has been of such a significant nature that he had no option but to resign from his position in the Respondent.

Timeline of Events

11th July 2023

The Complainant made the Human Resources Department aware of his concerns by directly contacting a representative of the Human Resources, Employees Relations Unit. The Employee Relations representative arranged to meet with the Complainant immediately due to the concern for him. During the course of this interaction the Complainant indicated that he intended to resign from the Respondent. The Employee Relations representative advised the Complainant to consider that may need to see his GP and might benefit from taking sick leave due to the emotional state that he presented in. The Employee Relations representative asked the Complainant had he raised the issue with any other manager or representative locally and he confirmed he had not. The Employee Relations representative asked the Complainant whether he had submitted a complaint under the grievance policy and he confirmed he had not. The Employee Relations representative advised the Complainant in respect of the policies and procedures available under the grievance and dignity at work policy and also advised the Complainant to give serious consideration to making use of these policies as an alternative to his intention to resign from the Respondent. The Employee Relations representative provided the relevant paperwork in respect of these policies to the Complainant.

12th July 2023

The Complainant contacted the Employee Relations Representative to inform her that he had been to his GP and was certified as sick for a period and sought information on how to submit his doctor’s certificate.

8th August 2023

The Complainant again contacted the Employee Relations representative and requested a meeting. A meeting was arranged for the 11th August 2023.

11th August 2023

The Complainant met with the Employee Relations representative and stated that having considered the previous discussion he still intended to resign. The Employee Relations representative provided the Complainant with the necessary paperwork in this regard. The Complainant submitted a resignation form to the superannuation section of the Respondent giving effect to his resignation with an effective date of 11th September 2023. The Complainant included with this form a handwritten note detailing his reasons for resignation that included allegations against his manager. The Complainant noted that policies and procedures were in place to deal with such issues within this note. The Complainant remained out of the workplace on fully paid certified sick leave until his last date in service 11th September 2023.

Position of the Respondent

The Respondent takes the responsibility of its duty of care to employees and its obligations as an employer seriously and has in place various Human Resources and Dignity, Equality and Inclusion Policies to ensure that it is meeting its obligations and that the appropriate processes and procedures are in place to address workplace issues that may arise.

These include: · Dublin City Council Grievance Policy · Dublin City Council Dignity at Work Policy and Procedure Any complaint raised under these policies is investigated thoroughly in line with the policy and any resulting recommendations or actions implemented to address the findings of any investigation.

As soon as the Human Resources Department were made aware of the nature of the allegations the Complainant was making in respect of his treatment in the workplace he was advised in relation to the policies and procedures available to him to address the concerns he had and raise the allegations as a matter for investigation.

The Complainant was advised to reconsider his stated intention to resign and was advised to give serious consideration to addressing the matters under the relevant policy.

The Complainant chose not to do so. At no point prior to this did the Complainant raise the matters within his own management structure or with the Dignity, Equality and Inclusion office or with the Human Resources Department.

Through his choosing not to pursue these options the Complainant did not provide the Respondent with any opportunity to address the issues raised, investigate the allegations or put in place any remedy arising from the outcome of investigation.

Conclusion

The Complainant claims that he has been unfairly dismissed and by virtue of the fact that he was not dismissed that he has been constructively dismissed.

In order to demonstrate constructive dismissal it is incumbent on the complainant to demonstrate that they acted reasonably and that the only option available to them was to resign.

The Respondent propose that the Complainant did not act reasonably. He did not use any internal procedure to seek to address the issues raised by him prior to resigning despite being advised to do so.

The Complainant did not provide the employer with any opportunity to investigate his claims prior to resigning and did not provide the employer with any opportunity to remedy any issues had any finding supported the Complainant’s claims.

The Complainant had he made use of the internal procedures would have been provided with the opportunity to have his complaint investigated and for any recommendations arising to be implemented or to appeal any findings on two occasions within these policies and procedures. The Complainant then would have had recourse to the Workplace Relations Commission in respect of his claims had he remained dissatisfied with the outcome of the internal process.

The Complainant chose not to avail of these options despite the advice and information provided to him.

It is the position of the Respondent that the Complainant has not conclusively demonstrated that he reaches the test of contract or reasonableness to have this complaint adjudicated upon in his favour.

As such we respectfully request that the Adjudicator finds that the complaint is without merit.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Relevant Law

Unfair Dismissals Act 1977 (as amended)

Section 1 of the Unfair Dismissal Act 1977 (as amended) (hereinafter referred to as “the 1977 Act”) defines constructive dismissal 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 the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer.”

The statutory definition of (constructive) dismissal provides for two tests, the contract test and the reasonableness test. The contract test is where the employee argues that he or she was “entitled” to terminate the contract because of the conduct of the employer which constitutes a fundamental breach of the employee’s contract of employment. The second test, which is the reasonableness test, has two elements. First, an employee may allege that while an employer may have acted within the terms laid down in the contract of employment its conduct may be none the less unreasonable. Second, the employee has to show that he or she acted reasonably in terminating the contract of employment in the circumstances. This latter element is a key factor as it requires the employee to have considered all other possibilities prior to taking the step of terminating his or her employment.

The contract test has been summarised in Western Excavating (ECC) Ltd. v. Sharp [1978] I.R.L.R. 27; [1978] QB 761 by Lord Denning MR as:

“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. The term imposes reciprocal duties on the employer and the employee.”

In the circumstances of this case, the Complainant has not identified any breach of his contract of employment on the part of the Respondent and certainly none which would amount to a significant breach going to the root of the contract of employment.

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test. It is well established law that the burden of proof in a constructive dismissal case is on the employee and the burden is extremely high.

In Cedarglade Limited v. Tina Hliban (UDD1843/2018) the Labour Court noted that "the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment" and held that the complainant failed to do so.

In Murphy v. CLI Insurance Services Limited (UD976/2014) the EAT noted that "in a constructive dismissal case the employee must show that because of the employer's conduct he was entitled to resign" and held that the complainant failed to do so.

Similarly, in Burns v. ACM Community Development Society Limited (UD2166/2011), the EAT held that the complainant fell "short of the high bar set to prove constructive dismissal".

The decision in Byrne v. Horwath Bastow Charleston Wealth Management Limited (UD67/2014) sets out the test for proving the very high threshold for constructive dismissal. In this case, the claimant argued her manager had engaged in bullying and harassing behaviour towards her and had raised her concerns with HR. Notwithstanding her discussions with HR, the respondent employer did not believe it was necessary to move the claimant to another reporting line. The claimant chose to resign instead of exhausting the company's bullying and grievance policies claiming that she "had lost confidence in utilising those procedures". The EAT rejected the claimant's case and set out the test for claimants to satisfy in a constructive dismissal case as follows:  "In constructive dismissal cases, the onus is placed on the Claimant to show that her conditions and treatment in the workplace by the Respondent were so intolerable and intractable that she had no other reasonable option but to involuntary resign”.

The burden of proof in a complaint such as this is an onerous one, in that the Complainant must prove not only that the Respondent's behaviour was unreasonable, but also that the Complainant response in resigning was reasonable.

To succeed in a complaint of constructive dismissal it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the case of Beatty v. Bayside Supermarkets (UD147/1987) the EAT held that:

“… it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v. Ulster Bank Limited UD474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of his not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

I found the Complainant to be an honest and credible witness and I am not disputing the bona fides nor the impact of the workplace environment on him. That being said, it is for the Complainant to show on the facts of his case that he meets the high threshold as set out above and I am not satisfied that the Complainant has done so. The Complainant failed to exhaust all avenues at workplace level prior to his resignation in August 2023. He did not provide the Respondent with any opportunity to investigate his claims prior to resigning and did not provide the Respondent with any opportunity to remedy any issues had any finding supported the Complainant’s claims. I accept the Respondent’s submissions that that had the Complainant made use of the internal procedures he would have been provided with the opportunity to have his complaint investigated and for any recommendations arising to be implemented or to appeal any findings on two occasions within these policies and procedures.

In the particular circumstances of this complaint and upon consideration of all the relevant correspondence, documentation, oral evidence and submissions I find that the Complainant has not demonstrated that the Respondent breached his contract of employment or acted so unreasonably that he was justified in resigning and he has failed to establish that his response was reasonable in all the circumstances. Accordingly, I find that the Complainant has not discharged the burden of proving that he was constructively dismissed pursuant to the 1977 Act.

For the reasons set out above I find that the within complaint is not well-founded.