EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Darren Young UD988/2012
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. M. Gilvarry
Members: Mr. D. Morrison
Mr. M. Mc Garry
heard this claim at Castlebar on 30th April 2014 and 22nd July 2014
Claimant: In person
Respondent: Peninsula Business Services (Ireland) Limited, Unit 3,
Ground Floor, Block S, East Point Business Park, Dublin 3
The claim is one of constructive dismissal. Accordingly the claimant gave evidence first.
The Tribunal heard evidence from the claimant. He commenced working for the respondent in 2006. The respondent is a pharmaceutical company that manufactures food supplements, vitamin tablets, mineral tablets and sports nutrition products. In 2008 the company were looking into herbal medicines. There are circa twenty-five employees.
The claimant was promoted in December 2007. From 2008 to 2010 the claimant explained that he was busy in his work as a Quality Assistant Manager (QM) and he was also studying for a Masters.
The claimant told the Tribunal that the case revolves around that the respondent company saying that he failed the ISO which is the quality management system and that the “key word is system”. The Irish medicines board, the Food Quality Authority and the Department of Agriculture are somewhat intertwined in the system.
The claimant explained that RE is the managing director of the company. His relationship with RE deteriorated during 2011 because RE shouted at him and verbally abused him. He could not explain why and had never experienced this before. He tolerated this because he has a family and because he wanted to finish his masters, so he “pushed on and ignored it”. In August 2011 things took a turn for the worse. He returned from holidays on 08th August 2011. He was told at one point that there was a 7.00 am start because of an audit on August 10th. From 7.00 am to 10.00 or 10.30 am on the day of his return, RE constantly shouted at him and called him incompetent. Then at 3.00 pm he was told that an investigation meeting was to take place. He had been called stupid and incompetent and then was faced with an investigation meeting. At some point he was told that he had not upheld the ISO standard. He was asked to admit that he was incompetent. As a result of the disciplinary meeting he was told that he was suspended and asked to leave the premises. He was told that he had breached the respondents trust. The respondent would return to him over the next few days and he would be given an opportunity to respond further. He went home “shell shocked”.
On 17th August 2011 he got a letter that was dated 16th August 2011. The letter outlined four allegations and requested a further disciplinary meeting on 18th August. At this time he sought legal advice. The company wrote another letter to say the meeting was adjourned to 24th August.
He attended a meeting, accompanied by his sister in law (LMcD), who took notes at the hearing.
The claimant re-iterated that he disagreed with the four allegations and always disagreed with them that he did not uphold the ISO standards.
He went to the disciplinary meeting and was accompanied by LMcD. At the meeting RE kept interrupting him and said that “he did not have all day to hear the matter”, he told RE during that meeting that his level of shouting was abuse. On receipt of the minutes of this meeting his legal representative advised the respondent that they rejected same and that numerous comments made by the claimant were omitted.
In a letter of 27th September the claimant was demoted from QA manager to QA operative and his pay was reduced. He was given leave to appeal the decision. He did return to work but he refused to accept the demotion. At a point in time RE began a tirade of abuse at him. He went to a nearby phone and phoned his wife. He told his wife that RE “was at it again”. His wife told him to leave to “get out”, so he left the respondent and did not return to work.
He did attend for one appeal meeting. The appel was to be heard by JR (a co-director) with whom he had numerous conversations and requested meetings regarding the ongoing situation. JR had just told him, he was a manger, get on with it. The claimant felt that there was little to be gained from JR hearing the appeal. The meeting lasted 15mins at most, and nothing new was brought to the table. The conclusion sent in a letter dated 21st November was that he was not suitable for the role of Quality Assurance Manager and the original decision to demote was upheld.
In clarification for the Tribunal the claimant told the Tribunal that he phoned JR in and around June and told him RE was shouting at him. He had asked to sit down with RE to speak about the system. J told him that it was his system (the claimant’s system) so “deal with it”. He didn’t want to get involved. JR did say that he would arrange a meeting but did not. The claimant did not follow this up in writing.
The claimant gave evidence as to his loss.
The claimant was asked if he was familiar with the company handbook and he answered that he was. He was asked if he felt that there was anything else that he could have done in relation to the grievance and disciplinary procedures and he answered “No”.
The claimant told the Tribunal that staff levels had gone down, that staff left the respondent and that his work level increased.
The claimant agreed that it was his own management system but that he needed help from RE because RE was the managing director and it was RE’s company. However their relationship kept breaking down. He told the Tribunal it was a toxic situation and he felt the respondent had a responsibility to him to treat him with dignity and respect.
The managing director RE gave evidence. He said that the role that the claimant was promoted to was one of Quality Manager, he was ultimately responsible for product quality, to make sure the respondent was compliant with regulations and to uphold standards. He explained that the ISO standard was of crucial importance to the respondent, they are audited to achieve the standard and following audits of 2009 and 2010 their licence was suspended (for 90days) in a letter dated 17th December 2010. RE said that he was flabbergasted when he got the notification. The implications were enormous and the responsibility lay firmly with the Quality Manger. Action reports should be done to find out what the failures were and then fix them. He sought and was granted a further extension of another 90 days
RM stated that during 2010 the respondent was busy and there was a certain lack of resources. Three people were recruited in January 2011. The claimant had completed his masters and two of those recruited went to quality department. There were no further requests for staff. The next audit was due in July/August 2011 and notification of same was received when the claimant was on holidays. On his return RM questioned him re the action reports. Nothing had been done and RM said he couldn’t believe it. That was why the disciplinary meeting of 24th August took place.
He said that he didn’t think that he called the claimant incompetent but was certainly unhappy with his performance. He refuted that he was ever bullying or harassing the claimant. RM also stated that he wanted to retain the claimant for his expertise but not at management level. That was why he took a decision to demote him, the work would have been similar but without the responsibility.
JR told the Tribunal that he heard the appeal. He is co-director/owner of the business. The appeal meeting was short and JR felt that the claimant didn’t want to be there. The claimant just wanted to read from one of his original letters and when asked if he had anything new to add he didn’t want to engage. He did repeatedly ask to be re-instated, but that was it. JR felt he had no option but to uphold the original decision as no new information had been brought to light.
He stated that he had full confidence in RE and while there may have been a couple of challenging meetings at the end of the day the respondents business was at risk and the issues were very real. The claimant had not used the grievance procedure and while he seemed to have written a diary full of notes he had never actually put anything in writing to the respondent.
In constructive dismissal cases the onus in on the claimant to clearly show that there was no other alternative option to take, other than leave their employment. It must be demonstrated that all reasonable alternatives have been considered.
Having heard and considered all the evidence adduced the Tribunal prefers the evidence of the claimant. The claimant had complained to one of the joint owners of the respondent about verbal abuse amounting to bullying, and effectively nothing was done about it. The Tribunal was satisfied that fair procedures were not followed in the decision to demote the claimant and in the appeal process. The decision to demote the claimant was not justified and it was not procedurally fair. While the claimant did not follow the formalities of the respondents written policy, he nonetheless made a complaint to JR which was effectively ignored, while at the same time being demoted. In those circumstances the Tribunal finds he demonstrated he had no alternative but to leave his employment and was constructively dismissed.
The Tribunal therefore determines that the claimant was dismissed and that his dismissal was unfair and determines that compensation is the appropriate remedy in all the circumstances. Taking into account the evidence heard relating to loss, the importance thereof and the claimants unavailability to work the Tribunal awards compensation in the amount of €17,500.00 in respect of his claim pursuant to the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal