ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043831
Parties:
| Complainant | Respondent |
Parties | Paul Hannaway | Kilsaran Concrete Unlimited Company |
Representatives | Joseph Smith BL instructed by Elena> Gray of Barry Healy & Company Solicitors | Mark Comerford 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-00054223-001 | 21/12/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00054223-003 | 21/12/2022 |
Date of Adjudication Hearing: 01/11/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
CA-00054223-001
CA-00054223-001 was initially submitted under the Industrial Relations Act. However the Complainant had the requisite service to be covered by the Unfair Dismissals Act (“UD”) and both parties, by way of their written submissions and conduct in the hearing, accepted this complaint being heard as a UD complaint. As such I have amended that complaint.
Exclusion of Wittnesses
Mr Smith for the Complainant requested that I exclude the Respondent witnesses while evidence was given. Mr Comerford for the Respondent opposed that application. Mr Smith asserted that such requests would normally be facilitated by the Courts however he did not point to any case law or Rules of the Superior Courts or Circuit Court Rules which established any entitlement to exclude wittnesses. While practice in the WRC continues to change since the ruling in Zalewski v. Adjudication Officer & Ors [2021] IESC 24 the default position is that these hearings are held in public and that it is not normal to exclude persons from the hearing without good reason. In the absence of any identified precedent I chose not to exclude any witnesses while other witness evidence was being given.
Summary of Evidence
I have given careful consideration to the submissions and to the evidence adduced at hearing by the parties. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
Background:
The Complainant worked for the Respondent concrete supplier from the 6th of August 2018 until his resignation on the 26th of August 2022.
He has submitted complaints of constructive dismissal under the Unfair Dismissals Act and penalisation under the Safety Health and Welfare at Work Act dated the 21st of December 2022. |
Summary of Complainant’s Case:
The Complainant’s representative made oral and written submissions on behalf of the Complainant. The Complainant gave evidence under affirmation. |
Summary of Respondent’s Case:
The Respondent’s representative made oral and written submissions. Mr Roy McKowen Managing Director, Mr Brendan O’Sullivan Associate Director, Mr Paul Maher Health and Safety Manager, Ms Mary Lennnon, Head of Strategic HR and Mr Enda Keenan, Group HR Manager all gave evidence under oath or affirmation. |
Findings and Conclusions:
Safety Health and Welfare at Work Act The Complainant has raised a complaint of penalisation under the Safety Health and Welfare at Work Act. Section 27 of the act defines penalisation as follows. (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment. (2) Without prejudice to the generality of subsection (1), penalisation includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation. The same section outlines the activities an employer cannot penalise an employee for undertaking. (3) An employer shall not penalise or threaten penalisation against an employee for— (a) acting in compliance with the relevant statutory provisions, (b) performing any duty or exercising any right under the relevant statutory provisions, (c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work, (d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions, (e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or (f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger. I have jurisdiction to hear this complaint of penalisation by way of Section 41 of the Workplace Relations Act 2015. This provides that an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Subsection 8 allows me to extend this time period out by a further 6 months where reasonable cause is identified. However, in this case there is no apparent reasonable cause for delay. As such my jurisdiction is limited to consider allegations of penalisation which were supposed to have occurred after the 21st of June 2022. Neither the Complainant’s submissions or oral evidence alleged any specific act of penalisation during this time frame. Unfair Dismissals Act The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns. This is outlined in section 1 of the act which defines dismissal as to include: 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, It is important to note that the above has been interpreted as putting the burden on the employee to establish not only was their decision to resign reasonable but that it was due to the unreasonable conduct of the employer. Or as the UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221: “is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving. He can go, with or without giving notice, and claim compensation for unfair dismissal” The Complainant alleges that he was constructively dismissed as a result of a number of incidents which occurred over the two years prior to his resignation. He and the Respondent witnesses referred to these in their evidence. Parental Leave The Comlpainant alleges that in 2020 he was subject to consistent pressure to return a member of staff to full time work even though they were working a reduced week on parental leave. His evidence was that though HR had agreed to it the Managing Director, Mr McKeown, regularly asked him when this person would return full time and expressed that he did not like that the person was on leave as they were short staffed. The Complainant brought this up with HR and Mr O’Sullivan, the Operations Manager. Both said they brought it up with Mr McKeown. Mr McKeown accepted in evidence that he raised the leave as an issue as they were short staffed. However, he disputed putting pressure on the Complainant. In any event the employee in question was allowed to carry on their leave as planned. RTA In 2021 a driver for the Respondent clipped a car while accelerating into the right hand lane on the motorway. It was reported to the Complainant that the car was in the driver’s blind spot. The Complainant took the view that while the incident was serious the driver wasn’t entirely at fault and issued only a verbal warning. His evidence was that Mr McKeown was angry about this sanction and that he thought it was too lenient and shouted at him. Truck Weights Beginning in 2021 the Complainant began raising concerns about the weight of the Respondent’s products and the impact of that on the weight of trucks going out. The weight of certain blocks appeared to be getting heavier and was not standard as it should be. He says he raised this repeatedly but was told it was not his role. Mr McKeown’s evidence was that this matter was ultimately resolved and that there had been issues with changing mixtures but these had been addressed. July 2021 Grievance In July 2021 a colleague raised a grievance against the Complainant for allegedly swearing at him. The Complainant disputed this and the grievance investigation made no findings against him. The Complainant considering raising a counter grievance but decided not to. Post Brexit Pressures There were significant issues with imports following Brexit. This appears to have put a lot of pressure on the Respondent’s management including the Complainant. The Complainant had a dispute with the yard manager who he felt was unfairly putting pressure on him. This carried on through 2021 and in particular involved late night emails. The Complainant ended up sending an email to him in which he cursed at him. This occurred alongside the Complainant raising a number issues internally. He was given out to by Mr McKewon for sending this email but the Complainant alleges that Mr McKewon failed to properly address the issues he was raising. 2021 Tablets The Respondent had a number of handheld computer tablets for its operations. In March 2021, the Complainant and another member of management were asked to carry out an audit of the tablets. They located 18 of the 20 tablets and spent considerable time and stress trying to locate the final two. When they went to Mr McKeown after 7 days with their findings, he told them he had the final 2 tablets. The Complainant believed that this was an unfair, unnecessary and stressful test of him and his colleague. Mr McKewon’s evidence was that he himself had found those two tablets in one of the offices and had not purposefully withheld them, he just hadn’t had a chance to tell them yet. 2021 Performance Review The Complainant was unhappy with the performance review he was given at the end of 2021. This was determined by his line manager Mr O’Sullivan. He appealed this and Mr McKewon revised the rating upwards. He was then given a pay increase in February 2022. February 2022 Incident The Complainant had an extremely unpleasant experience with a member of the public. He had told them that they couldn’t load their goods due to a safety issue. The person became abusive and threatened the Complainant. They were refunded and left. While the Complainant’s evidence was nothing was done about this and there were a number of witnesses, it is not clear if there were other members of management present and that he particularly thought anything should be done. He seems not to have reported the incident. May 2022 Incident The Complainant suffered a more extreme incident at the hands of a customer in May 2022. The customer, who was apart of a large family engaged in the building trade, had presented with a vehicle which would be overloaded if the Respondent fulfilled their order. The Complainant pointed this out and told the man he could not allow the vehicle to be loaded. The man became extremely aggressive and spat in the Complainant’s face and headbutted him. He then told the Complainant he would attack his wife. This interaction occurred across a number of locations in the Respondent’s yard and showroom. Brendan O’Sullivan the Respondent’s Operation Manager was called down at some point and told the staff to load the man’s vehicle. Mr O’Sullivan’s evidence was that this was an attempt to get the man away from the premises and was not meant to undermine the Complainant. His evidence was that at that point the Complainant had told them that the man had spat at him and had been abusive but had not said that he had threatened his wife. Mr McKeown’s evidence was that he was shocked when he found out what happened. He called the Complainant and was supportive towards him and was clear that he didn’t have to come to an upcoming company event. He made clear to the family business, that the man was engaged with, what had happened and that that man was never to attend any Kilsaran businesses again. The Complainant raised the matter via health and safety channels afterwards and the Health and Safety Manager did look into it but considered it over. The Complainant reported that he didn’t feel supported, particularly as Mr O’Sullivan had ordered the man to be loaded. The Health and Safety manager was of the view that Mr O’Sullivan didn’t have full possession of the facts at that time. Resignation The Complainant resigned from his role in August 2022. There had been a meeting on the 17th of August where a view had been expressed that the Complainant’s team’s communication needed improvement. The Complainant was unhappy with this criticism and felt it was directed towards him and that it constituted nitpicking. The Complainant found another job on less pay and resigned at this point. Construtive Dismissal Related to the 2021 Incidences A myriad of issues arose throughout 2021 and appear to have been resolved or resolvable through the Respondent’s grievance process. I am satisfied that the Complainant was well able to speak up for himself within the Respondent company and that he had engaged with HR avenues on a number of occasions. He had successfully spoken up in the past and seen the Respondent reverse course regarding issues he had raised, most notably his performance reivew in late 2021. For any of this to have been grounds for constructive dismissal the internal grievance process would have needed to be exhausted. Even if it had many of these issues were historic by the time the Complainant resigned and his reaction to them could not be the basis of a constructive dismissal. Construtive Dismissal Related to the 2022 Incidences Two extremely serious incidents occurred in 2022. In February 2022 the Complainant was verbally abused and threatened by a customer. In May 2022 the Complainant was attacked by a customer and had a vile threat made against his wife. The employer's duties regarding worker safety are key terms of any employment relationship and them falling short of this duty can of course be grounds for a constructive dismissal. However, as outlined above the constructive dismissal must be grounded in the unreasonable actions of the Respondent. In the February incident it is unclear what if anything the Complainant feels the Respondent should have done differently. Regarding the May incident the Complainant outlined that he felt that Mr O’Sullivan had undermined him and validated the behaviour of the customer by ordering the customer to be loaded. While I understand the Complainant’s upset at this I am cognisant of Mr O’Sullivan’s evidence that he did not at that stage have the full picture and that he was just trying to get an aggressive and abusive person off their premises. He was reacting in the moment. Mr McKewon’s actions afterwards were to call the people this man was associated with and ban him completely from their business. He offered support to the Complainant. He did not report the matter to An Garda Síochana but neither did the Complainant. I am not satisfied that the Complainant has identified actions taken by the Respondent which were so unreasonable that he was justified in leaving. In the circumstances the complaint must fail. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00054223-001 The complaint is not well founded. CA-00054223-003 The complaint is not well founded. |
Dated: 20th May 2024
Workplace Relations Commission Adjudication Officer: David James Murphy
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