ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00031283
Apcoa Parking Ireland Ltd
Kevin D’Arcy BL instructed by Regan Law
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 01/09/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 5th January 2021, the complainant submitted complaints pursuant to the Payment of Wages Act, the Organisation of Working Time Act and the Unfair Dismissals Act. The complaints were scheduled for adjudication on the 1st September 2021. The hearing took place remotely.
The complainant attended and was represented by Kevin D’Arcy BL instructed by Niamh Regan, Regan Law solicitors. Rory Treanor BL, Peninsula represented the respondent and two witnesses attended on its behalf: Chelsey Smith and Ann Byrne.
In accordance with section 41 of the Workplace Relations Act, 2015 and section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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.
The complainant worked for the respondent from the 20th May 2019 to the 8th October 2020. She worked three 12-hour overnight shifts, starting at 7pm and finishing at 7am. The role entailed unclamping vehicles on a hospital site and dealing with calls from other car parks. The complainant was paid €1,900 per month. The complainant outlined that she could not take breaks and that she was constructively dismissed. The respondent denies the claims.
Summary of Complainant’s Case:
The complainant was affirmed and gave evidence of working nights in the parking control room. She outlined that she was not able to take breaks. The complainant described a difficult relationship with a named colleague and that she tried to raise this as a dignity or a harassment issue. She referred to this colleague’s agitated and insulting behaviour on the phone and in person. She said that she was left ‘out in the cold’ by the respondent and went on sick leave. She then resigned. In cross-examination, it was put to the complainant that she had not done enough to raise a grievance, for example to put it in writing or to phone the operations manager. It was put to the complainant that the respondent did not know the reason for her sickness in September 2020. The complainant submitted that I had to make findings in accordance with her evidence, in the absence of contradictory evidence from the respondent.
Summary of Respondent’s Case:
The respondent made submissions and denied the complaints, albeit that the annual leave had since been paid. It outlined that the complainant had accepted that she did not exhaust the grievance procedure and was invited to engage by the UK-based manager. She had also not raised a grievance about not receiving rest breaks. As the complainant’s evidence was that she had not exhausted the grievance procedure, the respondent declined to go into evidence.
Findings and Conclusions:
In making these findings, I have considered the oral evidence adduced at the hearing summarised above as well as the documentation and submissions. I have also taken account of the post-hearing submissions and documents.
The monies due were paid to the complainant, as evidenced by the respondent. I formally find, therefore, that the complaint is not well-founded.
This is a complaint pursuant to the Organisation of Working Time Act regarding rest breaks at night (sections 12 and 16). The complainant worked a 12-hour shift, from 7pm to 7am. She was alone for most of the night, answering calls from people who have had their vehicles clamped. Her evidence was that she was told that she could not take breaks and could not access the hospital site. She worked from one room and there was a kettle and a sink. The contract provided for a one-hour break per ‘day’ and this would be unpaid.
The documentation does not provide that the complainant’s employment was exempt from section 12 of the Act, per SI 21/1998. It also does not indicate whether the complainant was a ‘special category night worker’ per section 16(3). Even if the complainant’s employment fell within the Schedule of SI 21/1998, insufficient compensatory measures were put in place to provide appropriate protection to the complainant.
I find as fact that there was a contravention of the Organisation of Working Time Act in that the complainant could not take breaks and there were insufficient compensatory measures in place.
In the circumstances, I award redress of €2,500 for the contravention of the Organisation of Working Time Act and this is redress for a contravention of the Act and not arrears in remuneration.
This is a complaint pursuant to the Unfair Dismissals Act.
Constructive dismissal – burden of proof
The definition of ‘dismissal’ in section 1 of the Unfair Dismissals Act sets out that dismissal includes ‘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.’
This definition sets out two circumstances in which an employee might consider themselves to have been dismissed by the ‘conduct’ of the employer, i.e., where they were ‘entitled’ to terminate their contract or where it was ‘reasonable’ for them to do so.
An employee is ‘entitled’ to consider themselves to have been dismissed when the employer has repudiated the contract of employment. It is ‘reasonable’ for the employee to consider that they have been dismissed when they can no longer be expected to put up with the ‘conduct’ in question.
Berber v Dunnes Stores
In a claim of (constructive) wrongful dismissal, the Supreme Court in Berber v Dunnes Stores (12th February 2009) held: ‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’
Finnegan J. further described the test in the following terms regarding whether an employer’s actions breached the term of trust and confidence:
‘1. The test is objective.
2. The test requires that the conduct of both employer and employee be considered.
3. The conduct of the parties as a whole and the accumulative effect must be looked at.
4. 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.’
In Berber, the Supreme Court held that the employer had committed a repudiatory breach that went to the root of the contract of employment through ‘oppressive conduct’ in the light of the employee’s precarious physical and psychological health.
As cited in the complainant’s cross-examination, the grievance policy provides that the employee can raise a grievance informally with the employer and ‘the manager will give you a response within seven days.’ The employee can then avail of Stage 1 if ‘you feel that the matter has not been resolved satisfactorily through informal discussions, you must put your grievance in writing…’
The grievance policy provides that once the employee makes a grievance, there should be a response from the employer, with the possibility that the employee can then escalate it further.
The bullying and harassment procedure states ‘every effort will be made by the company to resolve the complaint speedily and informally where possible. In accordance with the rules of natural justice, the alleged harasser will be given details of the allegation and the opportunity to reply. In some cases, it may be appropriate and sufficient for the Manager to explain to the person engaging in the harassment that the behaviour is unwelcome.’
In the email of the 17th July 2020, the colleague referred to the complainant in the following terms: ‘[the complainant] prefers to wait until everything is sorted, that she doesn’t have a headset and that she hopes no one is going to ring. Something make her cranky here, possibly someone from the colleagues or in the morning.’ The operations manager’s reply addressed the system issue and that she understood the colleague was doing a good job, with no mention of the complainant. On the 23rd July 2020, the colleague made further complaints about the complainant not taking calls and not having a headset. Separately, on the 27th July, the complainant emailed the operations manager about getting a headset. The complainant gave evidence that she was shocked when she read the emails as none of it was true.
On the night in July, the colleague made a series of phone calls where he expressed his annoyance at the complainant. During the third phone call, the colleague was shouting at her, telling her that she was a ‘gobshite’ and that the complainant could ‘f*** off’. The complainant was shocked and replied that she would not take orders from him. The complainant refers to a female colleague who made a similar complaint against the same person, where action was taken.
Did the complainant engage the grievance procedure?
I find as fact that the complainant engaged the respondent grievance procedure in the email of the 6th August where she describes both the issues of the colleague’s emails and his behaviour. She ends the email by expressing her shock, embarrassment and being shaken as well as this being an issue ‘that needs to be addressed’. While the word grievance is not specifically raised, the email clearly raises concerns about the colleague’s conduct and asks for a response. While it referred to ‘management feedback’, it also referred to ‘work issue’ and an ‘ongoing situation’.
The line manager’s reply is prompt and acknowledges the complainant’s upset and concern. The initial email reads like the acknowledgement of a grievance or a personalised complaint. There is no further reply from the respondent, even after the complainant’s follow-up on the 31st August.
I find that the complainant had raised a grievance and it was not dealt with by the respondent. The procedure contemplates that the respondent would respond to the grievance and the complainant could then choose to escalate it. The duty was on the respondent to investigate and respond. It was not for the complainant to do all the running and to escalate the grievance through the stages without any response from the respondent. The complainant had given a comprehensive and clear account of the issues; it fell to the respondent to react.
It is unexplained why the respondent and the line manager did not respond to the complainant’s follow-up emails of the 8th and 31st August. There was communication from the line manager on other issues (sick leave) but not on the ‘work issue’.
Events leading up to the ending of the employment
The complainant went on sick leave on the 11th September 2020. There are two medical certificates of the same date that cite different reasons: ‘medical illness’ and ‘occupational stress’. Both certificates are to end on the 12th October. The line manager’s email of the 7th October asks the complainant if she is returning on the 12th October. The complainant’s solicitor wrote to the respondent about the lack of any follow-up to the July complaint. This is the date of resignation. On the 9th October 2020, the HR Manager emailed to introduce herself and to apologise for the delay in following up from the August complaint, referring to the pandemic and changes to HR priorities.
I find that the complainant has established that the respondent repudiated the contract of employment in failing to comply with either its grievance procedure or the bullying/harassment procedure. I find that the respondent breached the mutual term of trust and confidence. The email of the 6th August 2020 raised issues that warranted investigation. The emails were of concern, but more serious was the aggressive and insulting behaviour. The complainant was a lone night worker and there is a particular onus to address complaints about the safety of such workers. The complainant raised a serious issue, and it was completely ignored until after she resigned. The complainant could not have trust and confidence in the employer, who had acted to repudiate the contract of employment. For completeness, I find that it was also reasonable for the complainant to end her employment.
The complainant gave evidence of her efforts to find employment but could not find any night work. The hospitality industry had closed because of the pandemic, removing that option from her job search. The complainant applied for the roles she could. In the circumstances, I award compensation that is just and equitable of €11,400.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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 decide that the complaint pursuant to the Payment of Wages Act is not well-founded.
I decide that this complaint pursuant to the Organisation of Working Time Act is well-founded and the respondent shall pay redress of €2,500, this being damages for a contravention of the Act and not arrears of remuneration.
I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant compensation of €11,400.
Dated: 15th December 2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissals Act / constructive dismissal / trust and confidence / rest breaks