ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022127
Philip Treacy Coleman Legal Partners
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005
Date of Adjudication Hearing: 14/11/2019
Workplace Relations Commission Adjudication Officer: Gerard McMahon
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-00029022-001: The claimant alleged that he was regularly subjected to exceptionally bad treatment in the workplace by one of the co-owners, who regularly sought out and verbally abused him. It is alleged that this included slanderous remarks to the claimant's work colleagues (in front of the claimant) and one occasion of physical assault on the claimant (on 8th May, 2019). The claimant contends that he complained about this behaviour and noted that he could not tolerate it any longer and the aforementioned incident on May 8th proved to be the ‘straw that broke the camel’s back’, prompting his walk-out and resignation, effectively constituting a constructive dismissal.
CA-00029022-002: Arising in the context of the scenario outlined above, the claimant alleges that he was penalised for complying with (or making a complaint under) the Safety, Health and Welfare at Work Act, 2005. That is, in the context of the aforementioned inappropriate treatment and his (alleged) complaint to management in respect thereof, he was subjected to bullying and harassment and forced to resign his position within the respondent company.
Summary of Complainant’s Case:
CA-00029022-001: The complainant was ill treated by one of the co-owners during his employment (e.g. frequent comments on his Dublin accent, criticism of his work, inappropriate remarks). He raised these issues with management and after raising the issues, the ill treatment turned into conduct described as ‘appalling bullying and harassment’. To the complete horror of the complainant, the relevant co-owner also physically assaulted him, by shoving him in the lower back and telling him to ‘move’. This was the first time the complainant had been assaulted in the workplace and it came as a complete shock to him. The Complainant was working with a knife at the time of the incident and reacted by telling the aggressor: ‘if you raise your hand to me again I’ll run this knife through you’. The complainant was extremely upset about this incident. This incident was the proverbial ‘straw that broke the camel’s back’ and the complainant could not continue in his position with the respondent. He had been the subject of severe bullying and harassment, which had culminated in assault. Subsequent to the complainant raising the issue of his treatment at the hands of the co-owner with management, the bullying and harassment had intensified. He walked out of his job on Wednesday 8th May 2019 (i.e. the same day as the alleged assault). On May 17th, 2019, the complainant emailed another co-owner, asking him to retain CCTV footage of the incident.
The complainant was bullied and harassed after the protected act of raising issues with his line managers. The complainant raised a number of concerns with his line managers, effectively invoking the grievance procedure. As a direct result of the bullying and harassment suffered by the complainant, he was forced to resign from his position with the respondent company. This was a position he held for a time period falling within the protection of the 1977 Act. That is, the complainant had the requisite 52 weeks continuous employment with the respondent. The factual position in respect of this point is that the complainant was absent from his position within the respondent company from the 30th November 2018 until the 22nd January 2019. The complainant and the respondent agreed that the complainant would finish in November and they agreed that he would return to the same position with the respondent company in January 2019. It is contended that this break commenced and concluded with the agreement of the complainant’s employer and his position was kept open.
CA-00029022-002: As outlined above, the increase in the ill treatment of the claimant (subsequent to the complaint), as perpetrated by the co-owner, represents penalisation for the purpose of the 2005 Act. Related thereto, the respondent is in breach of Section 27(3) of the 2005 Act, which provides that an employer shall not penalise or threaten penalisation against an employee for: ‘.. (b) making a complaint, relating to safety, health or welfare at work, to their employer, their safety representation or the HSA …’.
Summary of Respondent’s Case:
CA-00029022-001: The management/owners were never made aware of any grievances and never received any complaints from the complainant. The alleged aggressor was rarely present at the complainant’s branch/shop of the company and never worked directly with the complainant. The four (respondent’s) witnesses – the 2 complainants’ line managers and 2 (other) co-owners - gave evidence (at the W.R.C. hearing) that they never heard or witnessed any inappropriate behaviour on the part of the alleged bully/harasser. With reference to the alleged assault, the accused simply saw the complainant cutting a round of beef and asked him for his knife to show him how it should be done. This provoked the comment that: ‘if you touch my knife I will run it through you’. He did not make any physical contact with the complainant. In evidence, one of the complainant’s line managers observed the interaction and supported the co-owner’s version of events. Management tried but was unable to retrieve the CCTV footage as requested and extended an invitation to the complainant (to call in and) do so. The complainant left the employment of his own volition (i.e. he was not forced to resign). It is also pertinent in the context of the claimant’s coverage under the Unfair Dismissals Act, that he does not have the requisite service. That is, there was never any agreement about his absence from Nov. 30th, 2018 to Jan. 22nd, 2019. Furthermore, there is no record whatsoever thereof. Notably, on Nov. 30th, 2018 the claimant ceased employment and was issued with a P45.
CA-00029022-002: The complainant was never bullied or harassed and he never raised any grievances with the employer. No complaint was ever recorded locally or at Head Office.
Findings and Conclusions:
CA-00029022-001: The Unfair Dismissals Act 1977 only applies to employees with 52 weeks’ ‘continuous service’. The claimant’s P45 was submitted in evidence, serving to confirm a break in service, putting him outside the scope of the enactment. Related thereto, no evidence was furnished in respect of an ‘agreement’ in respect of the relevant absence. Furthermore, to establish a constructive dismissal case, the complainant must (ideally) be able to show that: (i) there was a breach of contract and/or unreasonable conduct by the employer and (ii) the complainant formally complained to the employer in relation to the said breach and/or conduct. Despite the claimant’s apparent credibility, together with the respondent’s failure to furnish the CCTV evidence (which was on a 31 day loop), the absence of any supporting documentation (e.g. in respect of the complainant’s grievance) and of supporting witnesses (i.e. for the complainant, in the form of past or present co-workers), vis-à-vis the volume and relevance of the respondent’s witnesses, serves to weaken the claimant’s version of the various events/agreement.
CA-00029022-002: Under the Safety, Health and Welfare at Work Act 2005 it is provided that: ‘if penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977-2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts’. In addition to the restriction on parallel claims, it is notable that the unfair dismissal claim is not upheld. Furthermore, despite acknowledging that he had received a copy of the respondent’s Employee Handbook (with specific provisions in respect of grievances and bullying and harassment) no evidence was presented in support of the assertion in respect of formal complaints having been made.
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-00029022-001: The claim is not upheld.
CA-00029022-002: The claim is not upheld.
Dated: 5th December 2019
Workplace Relations Commission Adjudication Officer: Gerard McMahon
Constructive dismissal Penalisation