SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
T.E. LABORATORIES LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY DESMOND RYAN B.L.
INSTRUCTED BY AYLMER SOLICITORS)
Chairman: Mr Geraghty
Employer Member: Mr Marie
Worker Member: Mr Hall
1. Appeal Of Adjudication Officer Decision No. ADJ-00009673.
2. The Worker appealed the Recommendation of the Adjudication Officerto the Labour Court on 25th September 2018 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 30th May 2019. The following is the Determination of the Court:
This is an appeal by Mr. Mikolajczyk, ‘the Complainant’, against a decision of an Adjudication Officer, (AO) of the Workplace Relations Commission, (WRC), that he was not constructively dismissed by T.E. Laboratories Ltd., ‘the Respondent’, contrary to the terms of the Unfair Dismissals Act.
The Complainant worked for the Respondent from June 2010. On 28 June 2017, the date that he ceased to work for the Respondent, he was a Warehouse Manager.
In early 2016, an anonymous tip was given to the company regarding possible theft of stock and, following 6 months’ monitoring by the company, another member of staff, (MH), was arrested and he admitted the unauthorised removal and sale of chemicals. He stated that he had acted alone. The Garda enquiry did not find that any other staff member had a case to answer.
Evidence was given to the Court that all members of staff were interviewed. In the Complainant’s case, he was interviewed on 6 occasions in August 2016. The Court heard that the Complainant felt that these meetings were aggressive and accusatory. The Respondent described them as ‘robust’.
The Complainant remained in work. In January 2017, the Complainant was required to attend a number of disciplinary meetings. These meetings were chaired by an outside consultant, Mr. Liam Barton. In February 2017, in circumstances that were disputed, the Complainant was suspended on full pay. It is not in dispute that the Complainant and his representative, Mr. Bill Canning, asked that he not be suspended. Nor is it disputed that the workforce was advised of the suspension, though the reason for this and the consequences are a source of contention.
In March 2017, Mr. Barton issued his decision that the Complainant should be issued with a Final Written Warning to remain on his file for 12 months. A letter was sent to the Complainant inviting him back to work.
The Complainant submitted medical evidence that he was unfit to return to work.
The Complainant appealed the decision. This appeal was heard by another outside consultant, Ms. Helena Broderick. She upheld the decision.
The Complainant did not return to work. Evidence was given on behalf of the Respondent of the efforts made to encourage his return. On receipt of further medical certification, the company arranged for the Complainant to be seen by a medical advisor. At the end of May, the Complainant kept this appointment. The medical advisor certified that the Complainant was upset by a difficult work situation and that he should remain on sick leave for a further 4 top 6 weeks, after which he ought to be able to return to work.
On that same day, the Complainant’s Solicitors wrote to the Respondent rejecting the appeal findings, seeking the removal of the Final Written Warning from the Complainant’s file, seeking an undertaking that no further disciplinary action would be taken, seeking an explanation for the Complainant’s suspension, seeking an apology to the Complainant and seeking an undertaking that the Respondent would take all necessary steps to ensure a safe workplace to which the Complainant could return.
The Respondent replied that the disciplinary process was exhausted, that they were awaiting the medical report and, when it was received, they would work with the Complainant to assist his return to work.
The Complainant’s Solicitors responded to say that , as the company refused to rescind the grossly unfair sanction, he felt that he had no option but to resign his employment. Further correspondence did not change the position.
The Complainant lodged a case with the WRC alleging constructive dismissal.
The AO found that the claim was not well grounded.
The Complainant appealed this decision to the Court.
The Complainant, as Warehouse Manager, was interviewed 6 times in August 2016. These interviews were ostensibly carried out to secure evidence from the Complainant as a witness. However, they were aggressive and threatening, (extracts from minutes of these meetings were provided to the Court).
Examples of this behaviour include the Managing Director, Mr.Mark Bowkett, making statements to the effect that he was suspicious of the Complainant, that the theft could not have occurred without the Complainant’s knowledge, that he was tipping off MH, that the company had lost trust in the Complainant and that if the matter went to ‘disciplinary..it will go one way’.
After these meetings, the Complainant felt physically ill and stressed. He also felt that there was a different attitude to him from management.
After a short period of sick leave, at a ‘return to work’ meeting with Ms. Catriona O’Reilly of HR, the Complainant ascribed his illness to the accusations and the threat of losing his job. Ms. O’ Reilly denied that this had happened.
The Complainant believed that pointed comments by a Manager that products needed to be locked up or they would ‘grow legs and walk’ were directed at him. He believed also that a statement by Mr. Bowkett that all export shipments would have to be reviewed by the company was directed at him as Mr. Bowkett had given him permission to make a private shipment of an item to Japan, at the Complainant’s expense.
Then at his general appraisal meeting, derogatory remarks were made about work that he had done previously, for which he had been commended and rewarded and unfavourable comparisons were made with the work being done by a person who had taken on the particular task.
Then, months later, in early December 2016, the Complainant was notified of a disciplinary hearing for what was described as ‘Gross Misconduct for Negligent Performance of Duties’.
This meeting took place on 12 January 2017 and the questioning was continuous and relentless.
At the end of the meeting, Mr. Bowkett told the Complainant that he was being suspended. Mr. Canning protested the decision on behalf of the Complainant but the decision was confirmed by email the following day. All staff were informed of this suspension and that the Complainant would not be back to work for the foreseeable future. This caused the Complainant great reputational harm and considerable distress. The Complainant believed that this showed again that there was a lack of trust in him and that it was a signal that his employer believed that he had no future with the business.
The Complainant believes that there was a lack of processes in place to protect the stock and that he was a scapegoat.
Following his suspension, the Complainant was so stressed that he could not deal directly with the Respondent and all correspondence was requested to be sent to his Solicitor. Indeed, he required permission from his Doctor to attend the appeal hearing.
The meeting with the Respondent’s medical advisor was very positive. She advised him to start looking into other employment options as she could see that his work situation was unsustainable.
When the Complainant’s Solicitor wrote to the Respondent seeking removal of the Final Written Warning and an apology, he felt that, if these were forthcoming, he could have regained the respect of his colleagues and that, perhaps, he could have begun to re-build the required trust between an employee and employer. Mr. Bowkett refused to engage on these matters, so, with great reluctance but because he could have no faith in his employer, in light of its treatment of him, the Complainant felt that he was left with no option but to resign.
In July 2016 an incident arose in the company. The Complainant was interviewed as a witness. It was only when this investigation was completed that questions arose regarding the Complainant, who was then the subject of a disciplinary process.
The Complainant was invited to a disciplinary hearing and was advised that the issues for discussion would be;
-ordering stock which was not required
-not following Director’s instructions regarding keys for containers
-knowing that stock was being taken and not stopping it or bringing it to attention
-failure to report missing stock
-agreeing to change a procedure whereby expensive stock was no longer accounted for
-failure to report inappropriate and uncontrolled storage of dangerous chemicals
-inability/refusal to provide adequate details at the earlier interviews
A disciplinary hearing took place on 12 January 2017. It was chaired by an outside consultant, Mr. Liam Barton.
Also in attendance was Mr. Mark Bowkett and Ms. Audrey McGrath, note-taker.
The Complainant was present and represented by Mr. Bill Canning. All points were discussed in detail. The transcript was provided to the Complainant.
A further detailed meeting took place on 15 February 2017 and, subsequently, information requested by the Complainant’s solicitor was provided.
Mr. Barton’s decision was issued on 28 February 2017. He decided that the Complainant should receive a Final Written Warning based on;
-errors in ordering additional stock not required
-failure to comply with stock recording procedures
-granting a request from MH regarding the location of certain product without referring this to a manager or director
-failure to take reasonable steps to control stock.
This Final Written Warning was to remain on the Complainant’s file for 12 months.
The Complainant was advised of his right to appeal and was invited to return to work.
The Complainant indicated an intention to appeal but sought a number of assurances before returning to work. The Respondent replied that the disciplinary process was completed and that the Complainant had the right to appeal.
Ms. Helena Broderick, an outside consultant, was appointed to hear the appeal. In March 2017, the Complainant was given medical permission to attend the appeal.
In April 2017, Ms. Broderick issued her detailed report rejecting the appeal.
Further correspondence regarding the Complainant’s health problems then ensued and the Respondent referred the Complainant to their medical advisor. Her report dated 2 June 2017 stated that the Complainant was unfit to work for a further 4 to 6 weeks, after which he would be able to resume.
That same day, the Complainant’s Solicitor wrote rejecting the decision on the appeal, seeking the removal of the Final Written Warning and an apology plus other assurances. The Respondent reiterated that the disciplinary process had concluded and that once the medical issues were resolved they were happy to work with the Complainant in assisting his return to work.
On 19 June 2017, the Complainant’ Solicitor wrote to say that as the disciplinary sanction had not been rescinded, the Complainant felt that he had no option but to resign.
The Respondent replied to the Solicitor and directly to the Complainant expressing disappointment with his decision and asking him to return. The Complainant’s Solicitor then wrote to say that the Complainant’s decision was final.
The Unfair Dismissals Act defines constructive dismissal in terms where it is ‘reasonable for the employee, to terminate the contract of employment’. The Respondent’s actions did not give rise to such circumstances.
The principles established require the Complainant to show either a breach of contract or that the actions of the employer were so unreasonable that continuation of employment would be intolerable. Neither applies in this case.
The Respondent fulfilled its contractual obligations in full. In the lengthy process of investigation, disciplinary and appeal, the Complainant was given the opportunity to present his case and he was given the right to representation. Following the decision regarding a sanction, every effort was made to engage with the Complainant and to encourage his return to work.
The Complainant had other avenues available to him to contest the sanction rather than resigning, including the use of the company’s Grievance Procedure or accessing the WRC.
Both the disciplinary hearings and the appeal were conducted by outsiders independent of the Respondent.
Case law, (cited to the Court), shows that there is a high burden of proof on an employee in a case of constructive dismissal to show that he acted reasonably in resigning and also that all available processes had been exercised prior to resignation.
With regard to the issue of the Complainant’s suspension, this was a ‘holding’ suspension and was not ‘punitive’. The AO had accepted that this was ‘a legitimate precaution’ and that the rumour mill would have been well underway prior to the suspension, which would not have ‘added much to the story’.
Mr. Jakub Mikolajczyk
Mr. Mikolajczyck, ‘the Complainant’, gave evidence of his career with the Respondent and his duties.
He recounted how he was invited to a series of 6 meetings from the end of July 2016 at which he believed he was ambushed and accused of being a co-conspirator in the matter being investigated, in a fashion that he found to be confrontational and intimidating.
It became clear to him that his employer had lost trust in him and because of his treatment, he lost some trust in his employer. He felt that he was being threatened with dismissal in some of the comments by Mr. Bowkett regarding what was likely to happen.
He felt that he was being scapegoated for poor controls in place.
He continued working for five months after these interviews, during which period he felt that management’s attitude to him had changed. He expanded on how he felt Mr. Bowkett’s curtailment of shipping had been aimed at him and how he felt that comments by another Director regarding product gaining legs and walking was also aimed at him. He also recounted how he felt his previous work was belittled in his annual appraisal, despite the fact that he had been commended for it and had received an award.
He described his shock at being suspended at the first disciplinary meeting. His representative had pleaded for him not to be suspended but Mr. Bowkett had gone ahead with the suspension, allegedly so that the witness would have enough time to go through all the relevant documentation. He stated that no alternatives to suspension were considered. This decision had then been conveyed to the entire workforce.
He believed that Mr. Bowkett, who was involved in both the investigation and the disciplinary process, had his mind set on the matter.
The witness described the appeal process as brief and narrow and he disagreed with the outcome. He described how he was so unwell that he needed medical permission to attend the appeal hearing. He was suffering from stress brought on by his work situation and said that this was recognised by the Respondent’s medical advisor.
The witness said that the way he was treated led him to lose all trust in his employer and, when they refused to rescind the disciplinary action and apologise, he felt that he had no option but to resign. He had suffered huge stigma in a small community.
The witness stated that he had been unemployed for a lengthy period after he left this employment. He had accounts with three employment websites and had put himself forward for interview. He had looked for work as far as Dublin. Eventually, he secured 2 to 3 days’ work per week with a building contractor.
Under cross-examination and questions from the Court, the witness denied that he was a qualified painter. He described his loss of social life and how, for a period, he had stopped playing football.
The witness said that initially he was interviewed as a witness. He acknowledged that he was known to be good at assessing stock and described how he did regular walk-arounds. When put to him that he should have been able easily to answer questions, the witness said that there were many different items of stock and he could not give details about all products.
He accepted that he was not mentioned by name in the comment about product growing legs but said that he felt that this was directed at him, as was the matter of the shipping by him of an item to Japan and the changes made to the shipping policy. With regard to the latter, he acknowledged that the changed arrangements affected others also.
It was put to him that the suspension was for a few days to allow him to review documents and that the delay in his return had been due to delays in his response. He stated that he did not need time off to review documents and had asked to be allowed to remain at work and that, by being off work, he had no access to the system to track back on stock. Mr. Bowkett had agreed to consider this but had subsequently confirmed the suspension.
When put to him that stock had suddenly re-appeared he said that had nothing to do with him.
He stated that between the interviews and the disciplinary meeting, he had been told that the company was gathering evidence, something that the company says was not so.
The witness described his shock at the disciplinary outcome as he had done nothing wrong.
He stated that after the theft he had not been allowed near stock, showing that he was not trusted and, as a result, he did not trust his employer. When put to him that it was not true that he was kept away from the stock, the witness stated that this part of his work was assigned to a different person.
He re-stated that the penalty imposed was unfair and felt that he had been treated throughout as if he was guilty.
The witness stated that while others were interviewed, he had been the only staff member interviewed on 6 occasions, despite the fact that he was, supposedly, only a witness.
When asked why he had not utilised the Grievance Procedure in the company, despite being invited to do so, after he had stated his intention to resign, the witness said that he could no longer trust his employer.
Mr. Mark Bowkett
Mr. Bowkett stated that he was the Managing Director of the Respondent. He stated that had known the Complainant prior to the events in question and that the Complainant had been a trusted employee.
Following the theft, all staff had been interviewed, some more than once and sanctions had been applied to a small number of staff.
He described the investigation meetings with the Complainant as ‘robust’ and acknowledged that he had said the things attributed to him but he stated that a full reading of the transcripts would show that he had also positive comments to make about the Complainant. He described a process in which, as he put it, the Complainant started at a certain point and ended at another point. The company was attempting to pinpoint the scale of fraud and the meetings with the Complainant had become robust because it was difficult to get information from him.
Subsequent to the meetings, he described his relationship with the Complainant as ‘strained’ as it was with other employees also. He denied that the change in shipment arrangements was aimed at the Complainant and noted that he had suffered himself as a consequence of the change to a great degree also. With regard to his colleague’s comment about stock growing legs, this related to stock going missing then re-appearing, which had never been explained.
When asked to explain the delay between the August meetings and the initiation of the disciplinary process, the witness stated that, in that time, the company was assisting Gardai in compiling a book of evidence, so that they were investigating and auditing.
He described the hiring of Mr. Barton to chair the disciplinary proceedings and how Mr. Barton had provided some management training for the company previously.
With regard to the decision to suspend, the witness stated that a lot of the material to be covered had been rolled on to a second day and required considerable scrutiny of documentation. To allow the Complainant the necessary time for this, he felt that he should be suspended with pay. Having been asked by Mr. Canning not to do this, he agreed to think it over. He took legal advice and confirmed the decision.
The witness stated that all relevant information was given to the Complainant and only one further meeting was necessary.
The witness outlined that Mr. Barton issued his finding, this was conveyed to the Complainant and that the witness expected the Complainant to return to work. He acknowledged that this would have its difficulties but he expected that it would be possible to re-build the relationship.
He explained that the role change for the Complainant would have helped him to concentrate on management and that the stock control function could be spread across the company.
Under cross examination and questions from the Court, the witness explained that his role in the initial meetings was to gather information. His role in the disciplinary process was as ‘charging officer’ i.e. he presented information but was not the decision maker, that role was Mr. Barton’s alone. He did not accept that he should have excluded himself from the disciplinary process because of his role as an investigator. It was his decision to charge the Complainant with ‘Gross Misconduct’. He accepted that the invitation letter should have been headed ‘Alleged Gross Misconduct’ but did not accept that this showed he had made up his mind on the matter, stating that he would not have followed this process if that was the case.
When asked to justify the charge, the witness said that he had weighed all the evidence and he denied that the charge was inappropriate and unfair. He stated that the basis of the seven charges was set out in the book of evidence given to the Complainant.
The witness explained that Mr. Barton’s decision had to be sanctioned by the company.
On the question of the suspension, the witness re-stated that its sole purpose was to give the Complainant the necessary time to consider all documentation. He had not considered alternatives.
The witness said that in informing staff of the suspension, the Respondent was very clear in telling them that this did not imply guilt and that the Complainant might return to the company. He said that while he could understand the Complainant’s trust issues, he felt that it was a huge jump to resignation.
The witness confirmed that no disciplinary investigation had been undertaken prior to the disciplinary proceedings and he confirmed that the Complainant had been invited to the initial meetings in the role of witness. When it was put to him that the absence of such an investigation deprived the Complainant of an opportunity to input prior to the consideration of possible charges and that this was contrary to the guidelines on disciplinary procedures set out in S.I. 146, the witness stated that he still felt that the Complainant’s resignation was not necessary.
Ms. Helena Broderick
Ms. Broderick told how she is a HR consultant and how she was hired by the Respondent to deal with the Complainant’s appeal.
She described how she reviewed Mr. Barton’s analysis, how she looked at Mr. Bowkett’s role, how she looked to see if the evidence supported the conclusions and how she had gone through the grounds of appeal. She stated that she was satisfied that there were changes in stock ordering, absences of adequate checks by the Complainant, unexplained changes in order patterns, failure to be compliant with procedures and failure to log into the diary.
She upheld the decision to issue a Final Written Warning.
She upheld the decision to suspend also. In her report, she noted that the suspension had been for two reasons, firstly to allow the Complainant to review documentation and secondly, because two days before the disciplinary hearing an order of Polyvials had been discovered. When put to her that no reference had been made to the latter reason in communication with the Complainant, the witness stated that this had been conveyed to her by, she believed, Ms. Catriona O’ Reilly, the company’s HR manager.
It was put to the witness that there had been no disciplinary investigation, there had been a gap of 5 months between meetings with the Complainant in his role as a witness and disciplinary proceedings and now it had emerged that there was a second reason behind the decision to suspend that had not been shared with the Complainant. In light of this, she was asked if she still felt the decision to suspend and to impose a final written warning should be upheld? The witness replied that any alleged flaws in the process had not been raised at the appeal. She accepted that the absence of a ‘bridge’ between the initial meetings and the disciplinary process was not good practice and with regard to the suspension, she relied on the evidence that she had.
Ms. Catriona O’ Reilly
Ms. O’ Reilly stated that she was a General Manager including HR Manager. She gave evidence of attending all investigatory meetings and told how sanctions had been imposed on 4 people, including the Complainant.
She told how she had compiled the documentation for the Complainant’s disciplinary meetings.
On the question of the suspension, the witness explained that possible irregularities regarding Polyvials came to light just 2 days before the disciplinary hearing. In any event, the Complainant needed time to go through all documentation. When asked why she had not suggested administrative leave rather than suspension, she said that she felt that they would amount to the same thing.
The witness stated that her next involvement was to convey Mr. Barton’s decision, to advise the Complainant of his right to appeal and that she invited the Complainant back to work.
She stated that she appointed Ms. Broderick. She reiterated the sequence of events subsequent to her conveying the appeal outcome and the referral of the Complainant to the Respondent’s medical advisors.
She stated that she was surprised at the Complainant’s failure to return to work and had suggested that he use the company Grievance Procedure. She felt that there was nothing involved that could not be resolved.
Under cross examination, it was drawn to the witness’ attention that it was not possible to use the company Grievance Procedure to query a disciplinary outcome and that under the disciplinary process of the company, the decision of the Chairperson was final, subject only to the appeal. The witness did not accept that this left the Complainant with no alternative but to resign and she said that she did not understand why the Complainant had not suggested some alternative way to deal with the matter.
The witness did not change her view when it was noted that the transcript of the meeting at which the Complainant was advised of the intention to suspend makes no reference to any issue with Polyvials, that no documentation was put to him on the matter at that meeting and that the letter of suspension makes no reference to any such matter. She echoed the view of Mr. Bowkett that this letter could be described as terse. Nor did the witness change her view when it was put to her that the absence of a disciplinary investigation was in breach of the guidelines set out in S. I. 146.
Dismissal is defined in s.1 of the Unfair Dismissals Act as follows;
“dismissal”, in relation to an employee, means—
- (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
(b) 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.
S. 6 (1) of the Act states
6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Redress for unfair dismissal.
- 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership
As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute. Therefore, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify him in terminating his employment.
S.1 of the Act envisages two circumstances in which a resignation may be considered to be a ‘constructive dismissal’. They are where the employer’s conduct amounts to a repudiatory breach of the contract of employment such that the employee is ‘entitled’ to resign, often referred to as the ‘contract test’. InWestern Excavating (ECC) v Sharp (1978) IRL 332this was said to require that the employer was guilty of conduct ‘which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract’. The second circumstance, which can be relied upon either as an alternative or in combination with the contract test, is where the employer conducts his affairs in relation to the employee so unreasonably that the employee cannot be expected to put up with it. Usually, in constructive dismissal cases, as set out inConway v Ulster Bank Limited UDA 474/1981the Complainant is required also to act reasonably by providing the employer with an opportunity to address whatever grievance they may have.
It is of note in the instant case that the Complainant could not utilise the company’s Grievance Procedure to seek to rectify what was, in his view, an unjust outcome to a disciplinary process. The Court notes in this regard the determination inBeglan v Scanomat Ireland Ltd UD 688/2012in which the Complainant had no means of dealing internally with his grievance and felt that he had to resign and in which the Employment Appeals Tribunal found that the Complainant had been constructively dismissed. Similar issues arose inSchonfield v West Wood Club Clontarf Ltd UD 1013/2013with a similar outcome. While noting also the expressed willingness of the Respondent to find another way to deal with the Complainant’s grievance and to facilitate a re-establishment of a working relationship, the fact is that, in the circumstances of the instant case the requirement applied normally, as part of the ‘reasonableness’ test, that the employer’s Grievance Procedure be utilised was not something that was available to the Complainant. That, of itself, does not mean that the Complainant was constructively dismissed. It does mean that if the Complainant can show that his employer’s behaviour was unreasonable, the fact that the Complainant did not, because he could not, utilise the Grievance Procedure cannot be a factor in the Court’s consideration.
The measure of reasonableness was set out with clarity by Finnegan J in the case ofBerber v Dunnes Stores Ltd (2009) 20 ELR 61as; ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’
This is the measure against which the Court must evaluate the case of the Complainant. It is, undoubtedly, a high bar to be met.
In the instant case, the Complainant was interviewed originally as a witness. Reading through the comments in the transcripts of the meetings, it is far from clear that the Complainant was regarded as a witness. Suggestions of disciplinary processes and clear hints of potential dismissal are not normal behaviours towards witnesses and are more like what might be put to somebody being accused of wrongdoing, in which case the Complainant would have been entitled to have allegations put to him in advance and to be afforded the right of representation.
There was then a five-month delay before this matter was broached again with the Complainant and when it was raised again it was not raised to advise him that a disciplinary investigation was to be conducted into which he would be invited to input. Rather, the Complainant’s status skipped straight from being a witness to being subject to a disciplinary process without what one witness described accurately as a ‘bridge’ between the two in the form of a disciplinary investigation. It is not without reason that the guidelines on disciplinary processes provide for disciplinary investigations as set out in S. I. 146. The reasons are so that facts can be separated from suspicion and rumour and explanations can be offered by anybody who could, potentially, be facing a disciplinary process. The fact that the Respondent did not undertake this exercise put the Complainant immediately at a disadvantage in the subsequent disciplinary process. If the Complainant had been dismissed as a result of this process, it might be expected that he would have argued an unfairness of procedure that was such to render unfair the outcome.
However, the Complainant was not dismissed, he chose to resign. It is arguable if this procedural breach was at a level of unreasonableness such that a reasonable person would conclude that they had no option but to resign even if the questioning at the earlier meetings was inappropriate when directed at a witness.
The decision to suspend the Complainant requires consideration. Included in such consideration is the absence of a disciplinary investigation. As was noted inThe Governor and Company of the Bank of Ireland v. Reilly (2015) IEHC 241suspension ‘ought to be seen as a measure designed to facilitate the proper conduct of the investigation’. It is most unusual for a worker to be suspended in the circumstances of the instant case. Clearly, there was no question that the decision fitted with any of the examples given inReillywhere suspension would normally be justified if ‘seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known to those doing business with the employer’. None of these could be applicable as the Complainant was left working for five months after the interviews that, apparently, prompted the instigation of a disciplinary process against him.
The reason offered by the Respondent to the effect that the Complainant needed time to go through all the relevant documentation suggests a level of benevolence towards his needs that was not otherwise apparent throughout the events that led to his resignation. The fact that the Complainant made clear his strong wish not to be suspended does not appear to have affected the judgement of the Managing Director. As was noted inReilly, suspension of an employee ‘can cause irreparable damage to his or her reputation’.
The Court struggles to understand how it can be justified to suspend an employee on one stated basis while subsequently advising the person who conducted the later appeal that there was a second reason, which was never put to the Complainant who, as a result, was not afforded the basic right of natural justice to be heard on the matter, prior to a decision being taken that had such potential to cause harm to him.
While an argument can be made that advising the rest of the workforce of the suspension of the Complainant might have been better for him than allowing the rumour mill to shape the narrative, it illustrates the consequences of the suspension for his reputation.
It is arguable if any one of the clearly unfair procedural deficiencies to which the Complainant was subject could, of itself, give rise to a legitimate claim for a constructive dismissal. The Court is clear, however, that the combined effect of them all would lead most reasonable people to the belief that the employer would like to have been shut of the employee. It is to the Respondent’s credit that they engaged outside decision makers for the disciplinary hearings and the appeal. In the circumstances, the Court is led to the conclusion that this level of independence is what prevented a decision to dismiss and that the Complainant was entitled to draw the logical conclusion that he was not wanted. It could be a source of interesting academic debate as to whether this situation went to the root of the employer/employee contract and, thereby, gave grounds for constructive dismissal on the ‘contract’ test. It is not necessary for the Court to enter this debate in the instant case. The Court is clear that the behaviour of the Respondent was so unreasonable that it was reasonable for the Complainant to terminate his contract. The Court determines, therefore, that the Complainant was constructively dismissed.
The Court is of the view that compensation is the appropriate remedy in this case. Unfortunately, the Court received little help in assessing the level of compensation that should be awarded. Information was provided that the Complainant had registered with three employment websites, that he had been unemployed for a significant period, (though the Court was not provided with the sort of evidence it would expect of letters of application to employers etc.), that the Complainant now worked two to three days per week and that he continued to seek full-time employment. No useful information was provided quantifying the actual income losses. In this very unsatisfactory situation, the Court has to proceed with caution. Having weighed such information as was provided, the Court determines that compensation of €15,000 should be awarded.
The decision of the AO is over-turned.
Signed on behalf of the Labour Court
11 June 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.