ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00000077
Parties:
| Complainant | Respondent |
Anonymised Parties | General Operative | Meat Processing Plant |
Representatives | CIARA MACKLIN MARK COONEY SOLICITORS | Gerald O'Donnell Caulstown Solicitors |
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-00000121-001 | 07/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00000121-002 | 07/10/2015 |
Date of Adjudication Hearing: 24/04/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015[ and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Post hearing submissions were exchanged following the hearing. Outstanding documentation was sought from the respondent at the final hearing and received in February 2018.
Organisation of Working Time Act 1997
Summary of Complainant’s Case:
The claimant submitted the respondent was in breach of the Act for failing to afford him correct rest breaks. It was submitted that during the claimant’s employment , the claimant was required to work long hours without being allowed to avail of breaks and rest periods to which he was entitled.It was submitted that the claimant frequently worked overtime and was not allowed rest breaks during that period.
Summary of Respondent’s Case:
The respondent denied any breach of the Act and asserted that the working time records presented by the respondent demonstrated that they were fully compliant with the provisions of the Act.It was contended that the respondent provided superior breaks to statutory requirements and that the claimant had been unable to identify dates or times of any specific breaches of the Act.It was submitted that in any event the complaint was out of time.
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.
I note that the claimant accepted in his direct evidence that he sometimes was afforded breaks during overtime.I further note that the claimant was confused about his entitlements to breaks under the Act and was unable to identify any specific breaches of the Act. Having reviewed the evidence presented at the hearing and noting the working time records submitted by the respondent , I am satisfied that the respondent met their obligations under the Act and accordingly I do not uphold the complaint.
Unfair Dismissals Act 1977
Summary of Complainant’s Case:
The claimant commenced employment as a General Operative with the respondent on the 23rd.Sept. 2013.He was paid €8.65 per hour and his normal working hours were 40 hours per week and his contract required him to work a reasonable amount of overtime.It was submitted that the claimant was initially assigned to cut animal carcases using an electric cutter ; it was contended that a new supervisor was appointed in early 2014 , Mr.S and that the claimant was mistreated by him .The claimant sought a transfer to a different line of work when he began to experience pain in his right hand owing to the physical and repetitive nature of his assignment – however he was assigned to another physically demanding position involving trimming sheep , placing them on a hook and skinning the sheep using a machine .It was submitted that this work caused the claimant pain in his right shoulder and upper back. It was submitted that Mr.S responded to the request with foul language and was unwilling to reassign the claimant when he complained about the pain arising from working with sheep. It was submitted that this led to the claimant taking time off work in July and August 2014 ; at this time the claimant was required to explain his absence and it was submitted that he complained at the time about Mr.S and understood that the complaints “ were included by the respondent in a report”. It was submitted that the claimant was subjected to further mistreatment when Mr.S accused him of being responsible for plastic clips – which are used for animal carcases- being found further down the production line ; it was submitted that Mr.S was angry and threatened to remove the claimant’s bonus if it happened again. It was submitted that another Supervisor Mr.L tried to reassure the claimant about these threats telling him to ignore Mr’S’s behaviour .It was submitted that the clips could have originated from a number of sources .It was submitted that the claimant was unable to ignore the behaviour and dreaded going to work .A further example of the alleged mistreatment arose when a friend of the claimant’s died at work and the following day when the claimant sought leave to go home as he felt unable to work , the request was approved by Mr.L but Mr.S was angry and abusive towards the claimant and shouted and used foul language. It was submitted that the claimant felt under continuous scrutiny from Mr.S who was trying to find reason to punish the claimant and it was submitted that the claimant continued to suffer from stress and anxiety to this day. It was advised that the claimant was pursuing separate Circuit Court proceedings against the respondent for personal injuries suffered . It was submitted that the respondent failed to address the claimant’s complaints about Mr.S .It was submitted that the claimant “ continued to suffer stress and anxiety arising from the mistreatment and abuse that he was subject to and to a lesser extent his physical pain and ultimately felt that as a result he was unable to continue working with the respondent” and resigned on the 7th.April 2015. It was submitted that during the course of the claimant’s employment , the claimant was required to work long hours without being allowed to avail of the break and rest periods he was entitled to. The provisions of Kennedy v Foxfield Inns Ltd t/a the Imperial Hotel [1995]ELR 216 was invoked in support of the claimant’s complaint of constructive dismissal. Riehn v Dublin Society for the Pevention of Cruelty to Animals [2004]ELR 205 was invoked in support of the claimant’s arguments regarding the heightened obligation of care and attention imposed on employers who have reason to believe that an employee is suffering from a stress related illness. It was submitted that in Kelly v Stuart UD 670 the Tribunal, while acknowledging that the claimant could have done more to pursue the issue with her employer upheld a complaint of constructive dismissal on the basis that the claimant’s workplace had become a very uncomfortable place to be and the failure to pursue the formal complaint was excusable in circumstances where the employer had failed to address the informal complaint.Porter v Atlantic Homecare Ltd. [2008]ELR 95 was referenced on foot of the Tribunal’s conclusion that the claimant’s treatment by the respondent justified her fear of availing of procedures. It was submitted that the claimant was frequently required to work long hours without being afforded the rest breaks provided for under Section 12 of the Organisation of Working Time Act 1997. In a post hearing submission it was submitted that Ms.C should have been in attendance at the hearing on behalf of the respondent and that the explanation for her non attendance was entirely unsatisfactory. It was contended that the respondent had indicated at the outset that Ms.C would be in attendance if her records were contested and that the respondent’s counsel had anticipated her attendance and cross examined the complainant on the basis of evidence that Ms.C would be giving. It was contended that arising from this no witness evidence was put forward to demonstrate how the claimant’s grievances about his supervisor were managed and the HR representative in attendance at the final hearing was limited to evidence about policies and procedures and had no involvement in the processing of the claimant’s complaints. It was advanced that the claimant’s denials about receiving training and/or the staff handbook must be accepted n their entirety .The claimant had pursued his complaints with Ms C and they were not adequately dealt with. It was submitted that the claimant’s evidence was that the respondent knew he was suffering from stress arising from his work. It was submitted that Ms.K had failed to concede that Ms.C acted improperly by retaining her record of her meeting with the claimant in a private notebook .It was contended that the absence of Ms.C at the hearing meant that the claimant’s counsel was unable to question her on her meeting with Mr.S and Mr.L specifically on the following – Why Ms.C met managers together when Mr.L was less likely to raise any issues he had with Mr.S; Clarify her omission regarding the statement about the claimant “ suffers from – alleged”?It was advanced that the respondent was aware that the claimant was suffering from stress as a result of his work and that he was on anti depressant medication; Clarify why the Ms.C did not follow up with the claimant to enquire if he was having further difficulties with Mr.S; Clarify why Ms.C did not follow up when she received an email from Mr.F indicating that he was having further difficulties with the claimant; Clarify why Ms.C did not refer the claimant to the respondent’s “ alleged formal grievance procedure”. It was submitted that Mr.S did not contest raising his voice or using foul language , that he conceded that this was contrary to the training he received and that he had disputes with the claimant about work assignments , plastic clips and time off following the death of the claimant’s colleague. It was submitted that the respondent’s own records show that HR was aware that the claimant was stressed from work , some of which was attributable to his treatment by Mr.S .It was submitted that the claimant gave uncontradicted evidence that he brought his grievances to HR and was never referred to the company formal grievance procedure.It was advanced that the cumulative failures amount to conduct that was at best unreasonable and at worst wilfully neglectful of a vulnerable employee.It was submitted that the respondent was treated entirely unfairly by Mr.S , that the respondent acted improperly in allowing him to act in this manner and in failing to properly process the claimant’s grievances. |
Summary of Respondent’s Case:
The respondent set out the background to the claimant’s recruitment and submitted that in the claimant’s interview assessment it was noted that the claimant had good English and had been living in Ireland for 7 years by Sept. 2013.The respondent set out the details of their grievance procedure and submitted that the procedure requires that employees raise their grievance as soon as possible after the issue arises and that if the matter is not resolved through the informal process , that a formal written complaint should be made. The respondent referenced the claimant’s absences from work between July 2014 and April 2015. The respondent set out a detailed account of the exchanges between the claimant and Ms.C from HR at a meeting on the 22nd.October 2014.It was submitted that when Ms.C asked the claimant what he would like her to do given they were having a private conversation as requested by him , he replied that he wanted her to speak to Mr.S and Mr. Q to see what the problem was.It was asserted that he stated “ I have no problem working .I like my job , I don’t want to be home I want to work-no problem with the job I was doing – would like to stay there -my wish is to be treated respectfully – no shouting please .If problem please let me know -I fix. Would like to return to work as soon as possible but need to sort my head first. When I come back and feel better I don’t want this happen again. Unable for the stress – treated that way alon ‘collleague’ dying and Mr.S shouting at me that day. It did not help me.’Colleague’ dying started my stress , but Mr.R did not help the situation , made it worse I think…” It was submitted that following the conversation , Ms.C met with Messrs .S,Q and L and that they informed her that when the claimant was asked to do a task he made a big deal out of it ; he liked to stay doing what he likes best and dictates to the supervisor what he prefers to do. Mr.S stated he had no huge issues with the claimant apart from not doing what he was asked .He would eventually do the task after giving out. In relation to the allegation of shouting , Mr.S stated that there were raised vices sometimes on the line because it was noisy. Ms.C’s observations were noted including her comment that the 3 managers denied that the claimant was being shouted at and she asked the managers to monitor the situation going forward. The claimant’s subsequent return to work and further sick absences were presented and the details of the claimant’s letter of resignation was spelled out. It was submitted that the claimant did not raise any further issue or grievance before he tendered his resignation and that the letter of resignation did not indicate that there was any issue arising out of his employment. It was submitted that the onus of proof was on the claimant to meet the definition of constructive dismissal and the entitlement and reasonable test were referenced and the provisions of Western Excavating 9ECC) Ltd v Sharp [1978] ICR 2221,226 were invoked in this connection. It was submitted that the matter to be determined was whether the claimant was entitled to or it was reasonable for him to terminate his contract of employment because of the conduct of the employer. The complaints set out by the claimant is his complaint form were summarised .It was submitted that the general principle inherent in unfair dismissals legislation is that a claimant who seeks to invoke the reasonableness test in the context of a constructive dismissal claim must act reasonably and pursue their grievance through procedures before resigning – a number of EAT determinations and the Circuit Court decision in Din v Dublin Simon Community ex tempore were relied upon in this regard. While it was acknowledged that there are a number of EAT determinations that found it inappropriate to require that claimant to go through procedures , it was contended that these cases were exceptional. It was submitted that in the claimant’s private exchange with Ms.C there was no mention of the threatening behaviour referred to in the complaint form.The claimant when asked confirmed that he wanted 3 people spoken to and he wanted no more shouting. It was submitted that the claimant confirmed that the stress was caused by his friend dying and suggested Mr.S had made it worse. When the claimant resumed work in Nov. 2014 , his subsequent absences were for hypertension and shoulder problems .It was submitted that the claimant never raised any formal or informal in the 5 months prior to resigning. In a post hearing submission , the respondent reviewed the 3 instances of alleged mistreatment by the respondent and submitted that the claimant in evidence expanded the allegations and introduced new complaints. It was submitted that when it was put to the claimant in cross examination that he did n’t raise issues with Ms.C about the plastic clips , being yelled at and bonuses being threatened , he changed his evidence to say that the incident occurred after the meeting with Ms.C. It was submitted that despite the claimant’s denials, the respondent produced a copy of the grievance and disciplinary procedures signed by the claimant and that given the regulatory nature of the meat industry and the policies outlined by the respondent , it was incredible for the complainant to suggest that he commenced work without induction. It was submitted that according to the claimant’s own evidence he complained on 2 occasions – once at his meeting with Ms.C and that he had accepted most of the minutes of that meeting.The other occasion arose when Mr.Sy was approached by a number of workers about the line manager and invited a group of 3-4 workers to revert to him.It was submitted that no further evidence was given about approachingMr. Sy again about these complaints. The claimant had stated that he was unaware of the employee forum at the first hearing but recalled the forum and the choosing of a nominee to attend them at the second hearing.It was advanced that the claimant proceeded to give confusing evidence about the forum and the exchanges with a colleague about his complaints and whether or not they were raised by his colleague at any other forum. It was submitted that the claimant’s evidence was that when he complained of the pain in his shoulder he was moved to another station that did not bring him relief , that he believed this was done on purpose and that he confirmed that he was not in contact with his Supervisor Mr.S before resigning as he was on sick leave. It was further submitted that when it was put to the claimant that he was moved because he refused t do his job , he accepted that he was assigned to the easiest job on pet food. It was submitted that the claimant accepted that if he did n’t do the full job at the easiest station he would be reassigned. It was submitted that the claimant having resigned in April , worked for 8 weeks on night duty in October 2015 and remained off work until Sept. 2016 when he was on medication.It was highlighted that the claimant was in receipt of illness benefit for 4months of that period and was consequently not available for work. It was argued that employees are expected to pursue their grievances through procedure and that that the requirement to exhaust procedures was supported by UD 142/1987; UD283/1992; UD112/2004 .The EAT determined that the employee did not act reasonably in resigning without first utilising the procedure with a view to remedying the complaints.While it was accepted that the EAT had determined that that the exhaustion of internal procedures were not required , it was argued that these were exceptional cases.It was submitted that the evidence of the claimant was that he raised his complaint as a private matter and did not go down the formal grievance route. There was no evidence of fear and in fact his resignation thanked the respondent. It was submitted that the allegations of mistreatment – which were denied – were not such to give the claimant any reason not to invoke either the formal grievance procedure or pursue the matter through the employee forum. It was submitted that the evidence was that the claimant resigned because his work station was changed , the reason for that was that the claimant has refused to do the full range of duties at the easiest work station and this was accepted by the claimant. |
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.
I have reviewed the submissions of the parties , the evidence presented at the hearings , the transcripts of the evidence and the authorities relied upon by the parties. I have noted the conflicting accounts of the claimant and the respondent’s witnesses and considered the issues raised by the claimant’s representative with respect to the non attendance by the HR manager Ms.C at the final hearing. It has been suggested by the claimant’s representative that inferences should be drawn from her non attendance and I acknowledge that it was indicated. to the WRC at the end of the first hearing date that Ms.C would attend the second hearing .However, having reviewed the evidence , I have concluded that there was no significant dispute between the claimant and Ms.C in relation to the exchanges that took place at their meeting on the 22nd.October 2014 and while it would have been of assistance to explore Ms.C’s account of outcomes following her meeting with the claimant’s managers, I don’t accept that her non attendance is fatal to the respondent’s defence of the complaint. In arriving at this conclusion I have had regard to the fact that the meeting in question was a “contact meeting” as opposed to a grievance meeting .I note that the Supervisors Handbook requires that a manager revert to a complainant in the context of a grievance complaint and note the distinction drawn by the current HR manager Ms.K between a grievance meeting and a contact meeting. Additionally , it was not disputed by the claimant that he had requested that his exchanges with Ms.C would be private. I further note that the documentary evidence presented at the hearings and the evidence of Mr.F indicate that Ms.C did follow up on the concerns raised by the claimant and observed the provisions of the Bullying and Anti Harrassment policy in endeavouring to resolve the issues informally through her meeting with both parties. While I acknowledge that here say evidence was given that Ms.C did follow up with enquiries with the claimant after the meeting and that the respondent was not made aware that the claimant was under psychiatric care ,I accept the contention of the claimant’s representative, that HR should have been more proactive in following up with the claimant after the meeting to establish if her intervention had achieved the desired outcome given the fact that a number of the claimant’s medical reports referred to stress . Having said that I consider it noteworthy that Mr.S acknowledged in his evidence that arising from the meeting with Ms.C , he choose to limit his interaction with the claimant , to leave the direct management of the claimant to Mr.L and to avoid confrontation with the claimant. Consequently , while I acknowledge some deficits on the part of the respondent in terms of proactive follow up with the claimant post the meeting , I have concluded that given the nature of the concerns raised by the claimant - which can be very challenging to manage for all employers in terms of respecting the rights of both parties- the respondent did in large part comply with their own policy on bullying and anti harassment .I further find that the provisions of the respondent’s policies , their Supervisor’s Handbook and their Employee Handbook are robust , progressive and fair. I have considered the evidence of the parties in relation to the induction of the claimant and the furnishing to him of a contract of employment and company policies and the employee handbook.On the basis of the evidence presented , I find on the balance of probabilities that the claimant was indeed inducted and furnished with said documentation from the outset.I note that the claimant accepted that he was in possession of an employee handbook from March 2014.I further note the contradictory evidence offered by the claimant with respect to when the matter of the issues around blue clips surfaced .As already stated there was substantial agreement on the exchanges with the claimant and the HR manager on the 22nd.Oct. 2014 and the matter of the blue clips and the ensuing dispute between Mr.S and the claimant was not raised at that meeting.I further note that the claimant acknowledged at the second hearing , his awareness of the employee forum and the role of his representative – I acknowledge the claimant’s evidence about his lack of clarity around how his representative was fulfilling that role.I have taken account of the minutes of the one meeting of the employee forum which were furnished to the WRC and accept on the basis of that document that the forum – all be rudimentary – provided a vehicle for front line workers to raise their concerns and that the line managers were excluded from the forum. I have taken account of the respondent’s chronology of the medical certs submitted by the claimant and of the fact that the more recent certificates prior to the claimant’s resignation referred to shoulder pain and hypertension and not to stress.I have considered the evidence of the parties in relation to the various deployments of the claimant and have concluded that the respondent did endeavour to facilitate the claimant by assigning him to the easiest assignment on pet food and that this was acknowledged by him.While I acknowledge the polarised accounts of the parties in relation to the exchanges that took place in the workplace the morning after the death of the claimant’s colleague , I find that the claimant’s supervisor could have been more sensitive in his handling of the matter of cover to facilitate him in getting time off. I have taken account of the text of the claimant’s letter of resignation “ for health reasons” and his assertion in his direct evidence that he left because he was not given a chance to work. I have reviewed the authorities relied upon by the parties in conjunction with all of the forgoing considerations.The respondent has argued that the claimant’s failure to further pursue his grievances internally is fatal to his complaint of constructive dismissal while the claimant’s representative has contended that the employer’s behaviour was so unreasonable that his resignation was justified. I have concluded that the claimant was in possession of a means to exhaust internal procedures through the company grievance procedure and /or the employee forum and failed to do so.I don’t accept on the basis of the evidence presented that the deficits on the respondent’s side could be deemed to be of sufficient significance to prevent him from doing so. The claimant’s final medical certificate covering the period from the 1st.-5th.April 2015 stated “ is suffering from : a right shoulder condition” and “ would probably be fit to work if he didn’t have to use his right shoulder so much”.It was open to the claimant to engage with the company on his return to work and to seek in accordance with their health & safety policy to have a risk assessment undertaken in light of this report thereby affording the respondent an opportunity to address this grievance. I have concluded that his failure to do so was unreasonable and consequently find he has not met the high bar required to sustain a complaint of constructive dismissal. Accordingly , I do not uphold the complaint. |
Dated: 9th April, 2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea