Complainant

Respondent

Parties

Mariusz  Katra

Consol Concrete Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Krystian Boino Boino Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00067687-001

26/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00067687-002

26/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00067687-003

26/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00067687-004

26/11/2024

The Complainant commenced employment with the Respondent on 9 May 2024.  His employment ended on 7 October 2024.  He was paid €20 per hour. A complaint form was received by the WRC on 26 November 2024.

The Complainant provided a written submission.

The Complainant submits that he commenced employment with the Respondent on 9 May 2024.  After several weeks the Complainant was subject to bullying, intimidation at work; was called F**king idiot, moron, brainless and that one supervisor would joke that the Complainant had “a hole in his brain” as a reason he was “so stupid.”  Initially the Complainant tried to tolerate this abuse because he was very dependent on the Respondent as he was living in accommodation provided by the Respondent. 

The Complainant submits that some acts of bullying were witnessed by members of management.  For example, the Complainant submits that Mr Jonathan Nolan witnessed the supervisor referred to above pouring dirty water over the Complainant’s head and heard him threatening to push the Complainant’s face into concrete. On 1 October 2024, the Complainant submits that Mr Nolan also witnessed the supervisor calling the Complainant names and squeezing his hand excessively. Mr Nolan did nothing about these bullying actions carried out by the supervisor.  The Complainant felt humiliated and started crying. He rang his wife and asked her to collect him form the site the team were working on in Cork.  Later that day the Complainant had to visit hospital to get assistance for his mental health problems caused by the humiliation. Due to the above events, he resigned from his employment with the Respondent on 7 October 2024.

The Complainant submits that he was forced to resign from his employment with immediate effect in circumstances of physical danger to his person and in circumstances of persistent and serious danger to his mental health/well-being and in order to protect himself from danger. What was important was that management witnessed those acts and failed to protect the Complainant and failed to provide a safe place of work.

The Complainant submits that it is clear that he was forced to resign from his employment (the detriment) because of the abuse and because of the conduct of the employer, who was aware of the abuse, witnessed it and failed to provide a safe place of work.

The Complainant submits that the detriment of which he complains (dismissal) was imposed “for” having committed one of the protected acts. The Complainant refers to the Labour Court in Tony and Guy Blackrock. The Complainant submits that the principles of the burden of proof from Tony & Guy Blackrock, applies in this case.  It is for the Respondent therefore to show that the health and safety (protected act) issue that they were aware of and they witnessed was not a deciding factor for the Complainant to resign because of the Respondent conduct. Section 27 (4) of the Act specifies that the dismissal must not result not only wholly but not even mainly from the protected act.

The Complainant submits that it is difficult to avoid the conclusion that the employer was proceeding on the basis that keeping in employment the abusive supervisor (and not upsetting that supervisor with any investigations or corrective actions) was of greater value and was at the expense of the safety, mental health, and well-being of the Complainant.

Mr Mariusz Katra, the Complainant, gave evidence on Affirmation at the hearing.

The Complainant stated that he was subject to much abusive behaviour from his supervisor. He stated that he had been called a “f**king ejit”, a “f**king d**khead,” and was told he had a hole in his head. He recounted that during one job in Cork he was carrying two cans of water and he was told to run and run faster by his supervisor.  When he delivered the case his supervisor grabbed one of them and poured the contents over his head.  The Complainant stated that his boss, Jonathan Nolan, witnessed this but he did not react. A few days later the Complainant stated that while working on another job his supervisor threatened to put his head in concrete.

The final straw came a few days later when the Complainant says he was verbally abused by his supervisor who called him among other things a “f**king ejit” and physically abused when the supervisor squeezed his hand.  When this happened, the Complainant went and sat in a van. He says that Mr Nolan spoke to him while he was in the van and tried to persuade him to come down. He, Mr Nolan, said the supervisor “speaks to everyone like that, he even speaks to me like that.”

The Complainant stated that he rang his wife from the van and asked her to collect him which she did, which necessitated her driving from Portlaoise to Cork. Following this episode he sought medical attention. He formally resigned on 7 October 2024.  He said the Respondent did not say anything to him about an investigation. 

In response to questions put to him in cross examination, the Complainant stated that he never raised the matter of bullying by his supervisor as he was afraid of losing the accommodation which the Respondent had provided for him when he had to move out of his home. He was also afraid of his supervisor, he said everyone was afraid of his supervisor. He was also asked about a conversation he had with one of the management team at company party where, it was put to him, he had said he was very happy in his job. He replied that he could not remember such a conversation. This party took place in July 2024.

A Mr Nigel Higginbotham gave evidence on Affirmation at the hearing.

The witness stated that he had worked for the Respondent for six weeks and that he worked with the Complainant every day.  He stated that the Complainant’s supervisor spoke to the Complainant as “if he was a dog”. He said the supervisor did not speak to him like that as he knew his, the witnesses’ family.

When asked in what way the Complainant was treated the witness stated that the supervisor had a bullying demeanour, he had called the Complainant “stupid” and “an idiot”. He said that others were very aggressive towards the Complainant and that both of them had been spoken to in that fashion.

In response to a question as to why he had not brought his concerns to management, the Complainant stated that he was afraid of losing the accommodation the company had provided for him.  He agreed he had not made a complaint. 

The Respondent provided a written submission.

The Respondent submits that the Complainant commenced employment in May 2024 on trial period.  During this time, he was given a copy of the company’s Health and Safety Policy which specifies how the company manages and secures the safety, health and welfare of its employees. 

The Complainant was initially hired as a Concrete Finisher but it became clear during his trial period that he lacked sufficient experience for this role and as a result he was offered a position of Concrete Labourer and provided with additional terms in his Contract of Employment.

On 20 August 2024, a warning letter was issued to the Complainant after he was found driving one of the company vehicles without permission and without a driving licence, he was not insured to drive and he was fully aware of this.  The Respondent submits that after this incident his manager, Mr Nolan, noticed a change in his attitude towards site instructions and in Mr Nolan’s opinion his focus and concentration was never on the job or task at hand, with a constant distain and inability to take instruction from senior management.

The Respondent denies the Complainant was forced to resign. The Respondent submits that neither management or staff ever received any complaints from the Complainant.  Nor did they witness any of the abuses referred to in the Complainant’s complaint form. He also expressed his contentment with his job to Mary Nolan at a party in July 2024.

The Respondent submits that on 1 October 2024, the Complainant left a worksite early telling staff he was upset for personal reasons.  On 3 October 2024, he did not report to work. When contacted by the Respondent he replied that he could not talk.  He did not contact the office again that week.

On 7 October 2024, the Complainant did not report to work. When contacted by the Respondent he said he would not be returning to work. The Respondent sent an email to him stating that the company understood that he had decided to end his employment and that this was acceptable.

Mr Jonathan Nolan, Operations Manager, gave evidence on Affirmation at the hearing.

Mr Nolan stated that he never witnessed any acts of bullying or intimidation aimed at the Complainant, that he, the Complainant was always treated with respect and kindness. He stated that on 1 October 2024, the Complainant got distraught and approached him, he was upset and he said this was due to a personal reason. Mr Nolan stated that he had never witnessed any bullying nor was he made aware of it. It was only brought to his attention after 7 October 2024.

In response to questions put to him in cross examination Mr Nolan stated that he was the member of management who would normally be on site. He stated he had never witnessed any of the events referred to by the Complainant.  He had not seen dirty water being poured over the Complainant’s head. When asked if the Complainant had spoken to him when his hand had been squeezed [by his supervisor] the witness stated that the Complainant was crying because he, the Complainant, was having serious personal problems.  When asked why the Complainant’s wife had driven from Portlaoise to pick up the Complainant, he said it was because the Complainant could not drive.  When asked whether the Complainant had told him of being called names and having had his hand squeezed the witness replied by stating, “only when we got his email” and that the matter had been investigated but nothing was found.

Ms Majella McGrath, Accounts Manager, gave evidence on Affirmation at the hearing.

The witness stated that after the Complainant left the site, she contacted him and he said he could not talk. A medical certificate was received from the Complainant on Monday 7 October but dated 3 October 2024. It was pointed out by the Complainant’s representative that the document she was referring to was in fact a patient discharge form, which was dated 1 October 2024.

When asked why she had not interviewed the Complainant as part of the investigation referred to by Mr Nolan, the witness stated that a solicitor’s letter had arrived on the same day as the Complainant’s email to the company.

Ms Mary Nolan, Managing Director, gave evidence on Affirmation at the hearing.

She stated that with regard to Mr Higginbotham’s evidence he had not worked for the company for six weeks but only for about 11 days.

In closing for the Respondent, Ms Nolan stated it is hard to deal with something you do not know is going on and if the employee does not bring a grievance to you.

I have considered the matter very carefully.

Section 27 of the 2005 Act states:

Protection against dismissal and penalisation.

27.—(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.

(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.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

Application

Regarding the evidence adduced by the Complainant I accept that there may have been some instances where bullying did take place.  The Complainant’s evidence is corroborated by that of Mr Higginbotham but not supported by the evidence given by Mr Nolan. While I accept Mr Nolan’s evidence that he never witnessed instances of bullying, this does not mean it did not take place.   No one should have to suffer being called names of havingwater poured over them, in any walk of life but particularly not in their workplace. Bullying is deplorable and cannot be tolerated in the workplace.

However, the Complainant should have raised his concerns with his employer.

The requirement on a Complainant to exhaust the Respondent’s grievance procedure prior to a resignation in order to succeed in a claim of unfair dismissal has been emphasised repeatedly by the Employment Appeals Tribunal (EAT) and the Labour Court.  The most relevant case in this regard is Conway v Ulster Bank Ltd (UD 474/1981) where the EAT found that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated:

“We find that the Complainant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the Complainant’s case. In constructive dismissal cases it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Desmond Ryan BL also set out the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “There is something of a mirror image between ordinary dismissal and constructive dismissal.  Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employee resignations.  Where grievance procedures exist, they should be followed”

In this instant case not only did the Complainant not raise a grievance, he also put himself at arm’s length from the Respondent with immediate effect following his resignation.  Justifying a claim for constructive dismissal in these circumstances is impossible. Therefore, I cannot find in the Complainant’s favour.

The complaint is not well founded.

In a written submission, the Complainant put forward that he is covered by Sectoral Employment Order (Construction Sector) 2023 (and relevant portions of previous versions) but he did not receive the correct amount due to him in overtime payments for morning (26.5 hours) and evening (56 hours) overtime, he is owed €1,035, by the Respondent.

The Complainant also submits that he was directed to work at various locations away from his ordinary place of work when he was at his employer’s disposal he is owed for 94 hours at €20 per hour, totalling €1,880.

In addition, the Complainant submits that the Respondent failed to make appropriate contributions to his pension fund as required; the Respondent is obliged to contribute €30.82 per week.

The Respondent stated that the Complainant took four Thursdays off during his 20-week employment.  He informed management that this was due to personal problems. He was told he could try and work up his hours by working additional hours.  The Respondent submits that they paid him 32 hours flat time for the four Thursdays he missed. The Respondent says the worker’s rate of pay was €20 per hour Category B Worker rate as per the construction Sector, with an overtime rate of €30 per hour.

At the hearing the Respondent stated that when the Complainant was taken on, he knew he would have to travel to sites.  When he travelled in a company van it was because he could not travel under his own steam.  He was paid from the time he arrived on site.

In regard to pension contributions, the Respondent stated that when the worker was issued with his contract of employment, he was informed the company’s pension scheme but he said he did not wish to join it because he did not want to contribute to it himself.  He could not be forced to join.

I have considered this matter very carefully.

Section 23 of the 2015 Act states:

23. (1) This section applies to a decision of an adjudication officer under section 41 of the Act of 2015 in relation to a complaint of a contravention of—

(a) subsection (1) of section 20,

(b) a registered employment agreement (within the meaning of Chapter 2), or

(c) a sectoral employment order (within the meaning of Chapter 3).

(2) A decision of an adjudication officer to which this section applies shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurs, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(3) A decision of the Court under section 44 of the Act of 2015, on appeal from a decision of an adjudication officer to which this section applies, shall affirm, vary or set aside the decision of the adjudication officer.

The Complainant has submitted three complaints under the Industrial Relations Act 2015 related to his conditions of employment and the fact that they did not correspond to the Sectoral Employment Order (Construction Sector) 2023.

1.                   Appropriate payment for overtime: The calculations table submitted by the Complainant is telling. This contravention resulted in a substantial loss for the Complainant of approximately €1,035 within the cognisable period.

2.                   Payment for time being at his employer’s disposal: It is difficult to draw a clear conclusion on this element of the complaint.  However, it is clear the Complainant spent a considerable amount of time travelling to work sites and should have received some payment for this.

3.                   Pension contributions.  The Respondent failed to make any pension contributions as they obliged to do by the SEO throughout the course of the Complainant’s employment, some 22 weeks.

Having found the Complainant’s case under this act to be well founded I must consider what redress I should award. Section 23 of the act provides me with discretion to award up to 104 weeks salary in where an employer has contravened an SEO.  On review of the evidence available to me, and in particular the Complainant’s contract and work records it is clear that there were breaches of the SEO.

In the circumstances I find an award of €4,000 is just and equitable.

The complaint is well founded and I direct the Respondent to pay the Complainant €4,000 in compensation.

Constructive dismissal, grievance procedures, SEO.