EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
James Halligan UD1014/2013
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr T. Gill
Ms H. Kelleher
heard this claim at Limerick on 18th November 2014 and 9th February 2015.
Claimant: Mr. Richard Liston B.L. instructed by,
Mannix & Co., Solicitors, 12 Castle Street, Tralee, Co Kerry
Respondent: Ms Michelle O’Riordan, Holmes O'Malley Sexton, Solicitors,
16 Hume Street, Dublin 2
This is a case of Constructive Dismissal so it is up to the claimant to give evidence first.
The claimant commenced employment in February 1996 until he resigned in July 2013. The claimant was a warehouse operative. The respondent is a leading food service distributor in the country. On the 19th of October 2012 an incident occurred with a forklift; a pallet fell off the forklift and got damaged due to the prongs being misaligned. The claimant reported the incident to his manager (DS) and completed an accident report form. DS informed the claimant that he had conducted an investigation (without consultation with the claimant) and as a result he suspended the claimant’s forklift licence pending further training.
No further training took place but the following week on the 24th of October, the claimant was informed with 1.5hrs notice that he had to take a theory test; he failed this test as he had no time to prepare. The claimant reverted to warehouse duties without any reduction in pay. The claimant felt singled out by this treatment.
The day after the theory test, the 25th of October 2012 the claimant was involved in an accident; he was injured by a forklift in the warehouse. After the accident the claimant informed the morning supervisor (TN) who advised the first aid officer to look at the claimant’s foot. The claimant completed an accident report form and informed DS what had occurred. The claimant went home for lunch as normal; his foot got progressively worse so he decided to attend his GP. The claimant was certified sick for a few days; his wife dropped the medical certificate into the office and the claimant attempted to contact DS but did not receive a response other than a text message stating he (DS) was in a meeting.
On Tuesday the 30th of October the claimant sent two text messages informing his supervisor that he would not be returning to work. He attended his GP who certified him sick for a further 5 days. On his way home from his GP the claimant dropped the medical cert into the office and asked for it to be given to DS. Later that day DS called the claimant and spoke to his wife; he said he was concerned about the claimant and thought he would be back at work.
The following day the Health & Safety Officer (PD) contacted the claimant and asked him to make a formal statement regarding the accident ‘as is your legal obligation.’ DS had also asked the claimant to a meeting; this was arranged for Friday the 2nd of November 2012.
The claimant gave his statement to PD and signed off on the content. While he was on the premises the claimant asked to meet with DS or the assistant manager (POD) to discuss his return to work. POD said he hoped the claimant would be returning to work soon and explained that DS was not there so the claimant went home. DS contacted the claimant and apologised for not being there and asked him to return to the respondent premises.
The claimant returned to the premises and went into the meeting room. DS proceeded to berate the claimant for not being in daily contact with him while on sick leave. The claimant did not tell DS that he had met with POD earlier that day. The claimant was part of an employee-management communications group; he was the spokesman for the morning shift. DS informed the claimant that the group was a waste of time and that he had asked the claimant’s colleagues if they had wanted the claimant as their spokesman and they had said no and that all of his colleagues were laughing at him and had ‘set him up.’ As a result of DS’s words the claimant felt humiliated and demoralised, he left the meeting very distressed. The claimant’s relationship with DS was not very good after this meeting; the working relationship with DS had always been based on ‘fear and intimidation.’
On Monday the 5th of November the claimant returned to his GP who referred him to the mental health services and certified him on sick leave due to stress. His GP advised him to minimise contact with the respondent and post in his medical certs.
It took a number of weeks for the claimant to sufficiently recover enough to contact the respondent. He contacted the Managing Director (DG) as he had resolved issues with him before. DG was unavailable so he left a message to return his call. The claimant called again before getting in contact with DG. The claimant is not aware if there is a manager between DS and DG and he had no faith in HR (he previously contacted them in regard to holiday entitlements and it took three conversations before they could answer him). During a phone call on the 19th of November the claimant told DG that he wanted to meet him to talk about the accident and his mistreatment at the hands of DS; ‘to air his grievance.’ DG responded saying he ‘can’t promise anything would change’, the claimant understood this to mean that if he returned to work the situation would not change or be resolved and he would have no further recourse.
On the 5th of December the HR department wrote to the claimant on foot of the phone call with DG. They requested that the claimant follow the grievance procedure if he wished to make a complaint. The claimant tried to follow the grievance procedure but as he could not go to his direct supervisor (DS) he went to the next manager who was DG, the Managing Director. Although he requested a meeting with DG none was ever arranged.
On the 17th of December 2012 the claimant wrote to HR. The letter was entitled ‘Grievance of (the claimant)’. The claimant outlined his grievance against DS specifying the initial incident regarding his forklift licence and his mistreatment at the meeting. HR replied by letter of the 19th of December stating that a grievance meeting would be arranged with a senior manager but he would not be permitted to be accompanied by someone other than a work colleague. The claimant believed what DS had told him about his work colleagues’ opinion of him and therefore felt he could not ask one of them to accompany him to the grievance meeting.
There was no grievance meeting organised and to the claimant’s knowledge no investigation into his complaints took place. There was no further contact between the claimant and the respondent until the claimant sent an email on the 25th of July 2013 requesting his P45. During a subsequent conversation with HR the claimant informed them that he was leaving as they had failed to contact him since December 2012. The claimant could have returned to work if his grievances were investigated and a resolution was found.
The claimant now accepts that his position on the futility of contacting HR initially is unreasonable. The claimant gave evidence of his loss and his attempts to mitigate his loss.
DS is Warehouse Manager, responsible for the day to day management of the company and has 165 employees reporting to him including the day shift manager, the night shift manager and five supervisors. He is working for the company since 2004.
He had a very good working relationship with the claimant and had no issues with him. Should an employee have a grievance this is referred to his direct supervisor, the day shift manager or night shift manager. They in turn would keep the witness informed about such a grievance. The claimant was facilitated with a move from night shift to day shift during his tenure.
On 19th October 2012 TN informed DS that the claimant had dropped a pallet off a forklift about seven metres down. The prongs on the forklift were misaligned. The witness spoke to the claimant to ensure he was ok as well as everybody else working in the area where the incident had occurred. Due to the severity of the fall and in the best interest of the claimant he told the claimant that he would be taken off forklift duties and would have to attend a retraining course. The claimant was subsequently re-assigned to warehouse duties on full pay.
An independent company carries out training for the respondent. It is a one on one classroom session followed by a theory test. The claimant attended this training course on 24th October 2012 but failed the theory test.
On 25th October 2012 the witness met the claimant. The claimant was applying an ice pack to his ankle. The claimant told him that he had been hit by a forklift. The witness asked him to complete an accident report form. The claimant went home at lunch time but did not return to work. He texted his supervisor the following few days to say he would not be at work.
The witness was asked by Health and Safety Manager (PD) to contact the claimant and ask him to come into the office. The claimant agreed to meet PD and discuss the incident that occurred on 25th October 2012 and make a formal statement. Subsequently, DS met the claimant and agreed to have an informal chat. The witness was unhappy with the claimant’s poor communication with the office during his absence. During the course of that informal chat at no point did the witness berate the claimant. The claimant said the employee forum was not working. It was agreed that the claimant would no longer be spokesman for the group. The informal chat ended amicably and they both shook hands and the claimant told the witness that he would be in contact the following Monday indicating his return date.
The witness was unaware the claimant had dropped a medical cert into reception on the day he went home. It was the next day before the witness received the medical certificate.
DS was unsuccessful in making contact with the claimant in the following days.
PD gave evidence. He works with management in relation to incidents occurring in the workplace. He collects statements and these are kept in the workplace. The employee completes the top half of the form and he completes the bottom half of the form. He reviews completed incident report forms and adds in his own notes on each form. On reviewing the claimant’s incident report form he asked to meet with the claimant. He contacted the claimant while he was out on sick leave. A statement was taken from the claimant and both he and the witness signed it. It was standard practice in the company in the event of incidents occurring with forklifts that re-training is offered to employees as soon as possible thereafter. The claimant was informed on 19th October 2012 that he would be given re-training.
MOD is in the role of HR manager for eight years. The claimant had never raised any formal grievances or was not subject to disciplinary action during his tenure. MOD had a good working relationship with the claimant.
Should any employee have a grievance they are encouraged to try and resolve the matter with their immediate supervisor or manager. If the matter is not resolved HR nominate a more senior manager to investigate the matter.
Towards the end of November 2012 DG passed a letter to MOD which he had received from the claimant. The claimant sought a meeting with DG regarding a grievance he had. He had been out on certified sick leave. MOD did not think it appropriate to contact the claimant during his absence from work as his medical certificate had cited that he was suffering from stress. This was the first time that MOD became aware that the claimant had wanted to lodge a grievance. On 5th December 2012 she wrote to the claimant. She enclosed a copy of the grievance policy which outlined the procedure to be followed to establish a means of resolving the grievance. In the claimant’s letter dated 17th December 2012 he gave further details of his grievance. MOD again wrote to the claimant on 19th December 2012 regarding the grievance policy in place in the company but she received no response to this letter.
In July 2013 the claimant telephoned the Payroll Section looking for his P45. Payroll passed the message to MOD. She spoke to the claimant and he told her that he was not returning to work and that he had referred his case to the Employment Appeals Tribunal. MOD never thought the claimant would leave his employment.
In the case of constructive dismissal there is an onus on the claimant to clearly express his concerns and to avail of all procedures to seek redress from his employer.
Dismissal in relation to an employee is defined in Section 1 (b) of the Unfair Dismissals Act 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 advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of his or her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in Section 6 (1) of the Act.
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 Tribunal carefully considered the evidence adduced. The Tribunal is of the view based on the evidence that cumulatively the claimant did not meet the requisite threshold. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal