Complainant

Respondent

Parties

Laurence  Farrell

Meath County Council

Representatives

Dave Curran, SIPTU

Amanda Kane,  Local Government Management Agency (LGMA)

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-00048465-001

03/02/2022

The complainant commenced employment with the respondent as a Retained Firefighter in November 2015.  His hourly rate of pay was €20.83 gross.  The complainant resigned from his employment on 20 December 2021.

In January 2021 the complainant submitted a complaint of bullying to the respondent.  He contends that the respondent failed to investigate his complaint.  Further, he contends that the respondent denied him special leave which would have allowed him to continue in employment while dealing with his bullying complaint.  The complainant asserts the respondent repudiated his contract of employment by its unreasonable actions.  The complainant contends that he was in an impossible position and had to resign.  The complainant submitted a complaint alleging unfair dismissal (constructive dismissal) to the WRC on 03 February 2022. 

It is the respondent’s position that it at all times sought to address the issues raised by the complainant in a positive way and to facilitate him within the work environment.  The respondent handled the complaints raised by following the procedures set out in its Dignity at Work policy.  The respondent contends that there is no basis under which the complainant can establish that the respondent’s conduct was such that he was entitled to resign. 

The complainant commenced employment with the respondent in November 2015.  He was employed as a Retained Firefighter.  During his employment the complainant alleges that he experienced ongoing issues with his Station Officer (SO).  The alleged issues included verbal abuse, exclusion from training and health and safety matters.  The complainant raised these issues informally and several meetings took place with the SO and the Senior Assistant Chief Fire Officer (SACFO) to try to find a resolution.  That approach failed to resolve the issues.  In January 2021 the complainant submitted a bullying complaint to the respondent.

The complainant and his union representative met with HR representatives in February 2021.  Following that meeting the union representative, as agreed, summarised the complainant’s issues and submitted them by email on 01 March 2021.  The objective of the complaint was to have the matters fully investigated in the context of the respondent’s duty of care to the complainant in the workplace.  In addition, an alternative or mediated line management structure was requested by the complainant.

The complainant claims that the respondent failed to conduct a proper investigation of his complaints.  The complainant had identified several witnesses, but no witnesses were interviewed by the respondent.

Having made the SO aware of the complaints, the respondent wrote to the complainant setting out the SO’s replies to the complaints.  The complainant was disappointed with the approach taken by the respondent to his complaints.  He then requested that an independent external investigator be appointed to investigate his complaints.  This request was refused.

The complainant then appealed the outcome to the Director of Services, HR.  The original recommendation was upheld.

The complainant contends that it was unsafe for him to attend work due to the behaviour of the SO.  The complainant consulted his doctor and was certified as unfit for work due to work related stress.  The complainant went on sick leave from 11 February 2021.  The complainant’s pay under the terms of the sick pay scheme, ended in June 2021.  Thereafter he only received illness benefit from the Department of Social Protection.

While on sick leave the complainant requested access to training, but this was not granted.  In October 2021 he was offered one training event.  He requested use of a station jeep to travel to the training, but this was refused.  As he had no other means of transport, he could not attend the training.

The complainant remained on certified sick leave from February 2021 until the end of his employment. 

As the complainant was on sick leave a problem arose concerning PRSI contributions.  Retained firefighters are paid a retainer plus a set rate for hours worked when responding to alerts.  They are allowed to claim jobseekers’ benefit while employed as retained firefighters, but they are not required to search for work outside their role as firefighters.  They are however required to submit a form to the Department of Social Protection stating that some PRSI contribution has been paid by the employing council within the previous three months.  Due to the complainant being on sick leave no PRSI contributions were paid for several months.  Therefore, according to the Department of Social Protection rules the complainant would no longer qualify for jobseekers’ benefit.  The complainant’s union requested that he be placed on special paid leave for a short period as this would result in PRSI contributions being made and would resolve his issue with jobseekers’ benefit.  The respondent refused this request.

The complainant was placed in an impossible position.  He could not return to work due to the serious issues with the SO, which remained unresolved.  He could no longer remain on sick leave.  With the respondent not facilitating his requests the complainant was left with no option but to resign his employment on 20 December 2021.

Legal Submission

The complainant contends that the respondent repudiated his contract of employment by their actions.  The respondent failed both the contract test and the reasonableness test used in determining constructive dismissal cases.

Contract Test

The respondent failed to conduct a proper investigation of the complainant’s bullying complaint by a superior officer.  It is contended that this was a breach of the employment contract.

The respondent breached their own Dignity at Work Policy in failing to properly investigate the complaints.

Reasonableness Test

The respondent failed to act reasonably by refusing to address the issue of PRSI contributions and the complainant’s income.  The complainant attended a mediation session for which he was due to be paid once he returned to work.  Had this payment been made at the time he attended mediation the relevant PRSI contribution would have facilitated his continued employment.

The complainant contends that no reasonable employer would refuse his reasonable request to be placed on special leave for a few days in order to qualify for jobseekers’ benefit.

The complainant’s representative cited the following decisions in support of his claim of constructive dismissal: An Employee v An Employer UD842/2011, G4S Secure Solutions (IRE) Ltd v Charana UDD2022, TheCheshire Foundation in Ireland v Marray UDD2113, Oaklodge Fostering Ltd v Kirwan UDD2161.

Conclusion

It is the complainant’s position that the respondent through their actions repudiated his contract of employment.  Their failure to properly investigation the complainant’s complainant of bullying by his SO was unreasonable and a breach of his contract of employment. 

The respondent’s failure to follow their own Dignity at Work Policy was a breach of the complainant’s contract of employment. 

The respondent acted unreasonably by refusing the complainant special leave that would have facilitated his continued employment while trying to have his complaints resolved.

The complainant seeks an award of compensation as redress for his constructive unfair dismissal.

The complainant commenced employment as a Retained Firefighter on 19 November 2015.  Retained Firefighters receive payment by annual gratuity and hourly payment for hours worked responding to alerts, training hours and attendance at meetings.  Retained Firefighters are required to live and work within the “turnout” time of the Fire Station.

The complainant submitted a bullying complaint to the respondent on 18 January 2021.  The complaint related to a series of interactions between the complainant and his Station Officer (SO).  The Head of HR, Mr Murphy, met with the complainant and his union representative on 09 February 2021.  An observer also attended that meeting.  It was agreed that the union representative would summarise the complaints following the meeting.  The union representative submitted a summary of the complaints by email on 01 March 202, listing ten issues to be addressed.

Two days after the meeting the complainant submitted a medical certificate from his General Practitioner certifying that he was unfit for work due to work related stress.

The respondent handled the complaint in line with its Dignity at Work Policy.  The Policy states that there are three distinct processes available to assist staff who feel that they are being harassed or bullied in the course of their employment: resolving the problem informally, by mediation or by investigation.

The Policy also states that where a complaint of harassment or bullying is made all parties are entitled to the right to know the complaint made, right to reply, right to be represented and a right to fair consideration of the complaint.

Accordingly, the Head of HR met with the SO and put the complainant’s complaints to him.  The SO’s responses to each of the ten allegations were noted by Mr Murphy. 

The Head of HR issued a response to the complainant on 23 March 2021.  Several of the issues had been discussed with the Fire Service senior management.  Mr Murphy found no evidence of mistreatment, discrimination or bullying as defined in the Dignity at Work Policy.  He noted that six of the ten issues were outside the direct control of the Station Officer as they were subject to Fire Service senior management decisions, instruction, and procedures.  The other four issues related to how the SO carried out his functions.  Mr Murphy noted that an SO is accountable and responsible for the station, ensuring adherence to procedures, which must be consistently implemented.

Mr Murphy noted that meetings had taken place at local level to address a number of these issues.  The SACFO had attended these meetings with the complainant and the SO.  It was noted that the SACFO was of the view that the issues discussed had been addressed as best as reasonably possible and that the complainant agreed to continue service having had the discussions.  Mr Murphy considered that the issues had been addressed as reasonably as possible.

However, it is the respondent’s position that all staff are treated fairly and with respect.  In that regard it was recommended that a facilitated meeting between the complainant and the SO would assist in accommodating understanding between the parties allowing them to carry out their functions and duties in the context of the service they deliver and the structure within which they must operate.

The complainant sought a review of the outcome of the process.  The Director of Services conducted a review.  He wrote to the complainant’s union representative on 05 May 2021 stating his view that the approach of the HR department had been reasonable and appropriate.  Further, he encouraged the complainant to avail himself of the proposed facilitated meeting.

Sick Leave

The complainant submitted a medical certificate on 11 February 2021 certifying him as unfit due to work related stress.  The respondent arranged an Occupational Health (OH) appointment for the complainant.  He was certified fit to return to work on 15 March 2021.  The complainant expressed dissatisfaction with the OH report and he continued to submit medical certificates from his own doctor.    

The respondent arranged a second OH appointment to take place on 18 August 2021.  On 10 August 2021 the complainant cancelled that appointment.  The respondent rescheduled the OH appointment for 02 September 2021. 

The second OH assessment report, dated 10 September 2021, confirmed that the complainant was fit to return to work fulltime and to engage in all HR processes.  The complainant continued to be certified as unfit by his own GP and his representative requested a third OH assessment. 

A third OH appointment was arranged for 03 December 2021.  On that day the complainant’s union representative informed the respondent the complainant would not be attending the OH appointment.  The respondent asked for suggestions regarding a third OH assessment, but no further communication was received in relation to this issue. 

The respondent tried to facilitate the complainant’s return to the workplace by arranging for three OH assessments.  Despite the OH medical finding that the complainant was fit to return to work he remained absent on sick leave, certified by his own GP, until he resigned from his employment.

Sick Pay

The complainant was paid under the sick pay scheme from 11 February to 02 June 2021, when his entitlement under the rules of that scheme expired.  He was then placed on nil pay.  Consequently, PRSI contributions were not being paid after that date. 

The complainant asked to be placed on special leave to maintain his social welfare entitlements.  The respondent informed the complainant and his union representative that as the complainant was on medically certified sick leave there was no mechanism available to place him on special leave.  Further, any social welfare benefits issue was a matter between him and the Department of Social Protection.

Proposed Return

The respondent arranged for the complainant to attend a Breathing Apparatus refresher course in October 2021, as he was out of certification.  The complainant notified the respondent that based on his GP’s advice he would not be attending the course.

The respondent recommended a facilitated meeting between the complainant and the SO to assist in accommodating understanding between the parties allowing them to carry out their functions and the complainant to return to work.  The complainant agreed and the respondent arranged for an experienced independent facilitator/mediator to meet with the complainant and the SO. 

The mediator met with both parties independently on 16 November 2021.  A further session was arranged for 01 December 2021.  The complainant’s union representative notified the respondent on 30 November 2021 that the complainant would not be available to attend the session on 01 December.  The respondent contacted the union representative on 07 and 15 December 2021 to try to re-arrange the mediation session, no date was fixed.  The complainant submitted his resignation on 20 December 2021 without attending any further mediation session.

Legal Submission

This complainant is one of constructive dismissal.  The burden of proof in such a case rests with the complainant.  To succeed in such a claim, it must be proved that either there was a fundamental breach of contract or that the employer acted in such an unreasonable manner that the employee was left with no option but to resign.

The respondent’s position is that there is no basis under which the complainant can establish that its conduct was such that he was entitled to resign.  The respondent handled the complaints informally in line with its Dignity at Work Policy. The complainant did not accept the outcome and wanted a formal investigation.  There is no right to such an investigation process.  The respondent proposed mediation between the parties but following one meeting the complainant did not engage further. The respondent could not intervene in the complainant’s issue with the Department of Social Protection. 

The respondent cited the following decisions in support of its submission concerning constructive dismissal: Cedarglade Limited v Hliban UD/17/45, Mr O v An Employer [2005] 16 ELR 132.

Without prejudice to its case the respondent cited the following decisions concerning mitigation of loss and assessment of compensation: McNally v Tesco Ireland Limited UD80/2015, A Decorator v A Painting/Decorating Company ADJ-00002445.

The respondent’s position is that it took appropriate action in relation to the issues raised by the complainant.  It addressed his complaints when raised and sought to facilitate his return to work.  The recommended mediation process was intended to provide the basis for the complainant to return to work but, he failed to properly engage in that process before resigning.

The respondent could not agree to the request to put in place special leave when the complainant at all times remained certified as unfit for work by his own GP and was absent from the workplace on sick leave. 

The complainant was not dismissed but resigned from his employment.

CA-00048465-001

Complaint pursuant to Section 8 of the Unfair Dismissals Act, 1977

The complaint for adjudication is one of constructive dismissal.

The complainant was employed as a Retained Firefighter with the respondent.  He commenced employment on 19 November 2015, and he resigned on 20 December 2021.  It is the complainant’s position that he had no alternative but to resign due to the failure of the respondent to investigate his complaints of bullying. 

The complainant contends that the failure of the respondent to investigate his complaints of bullying was unreasonable and a breach of his contract of employment.  Further, the complainant contends that the respondent’s failure to facilitate his employment through granting special leave was unreasonable and breached the reasonableness test established in constructive dismissal case law.

The respondent asserts that it took appropriate action in relation to the complaints of bullying and followed the procedures set out in its Dignity at Work Policy.  The respondent contends that it sought to address the issues raised by the complainant in a positive way and to facilitate the complainant within the work environment.  It is the respondent’s position that it acted reasonably, and that the complainant failed to engage fully in the proposed resolution process before resigning.

Legislation

Dismissal is defined in section 1 of the Act of 1977 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, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose

As the complainant is alleging constructive dismissal, the fact of dismissal is in dispute.  Therefore, the onus of poof rests with the complainant to establish facts to prove that the actions of the respondent were such as to justify him terminating his employment.

A constructive dismissal may occur where the complainant terminates the contract of employment in circumstances in which, because of the employer’s conduct, either the complainant was entitled to terminate the contract, or it was reasonable for the employee to terminate the contract.  The alleged constructive dismissal must therefore be considered under two headings, entitlement and reasonableness. The complainant is relying on both the contract test and the reasonableness test to ground his complaint.

An employee may be entitled to resign where the employer’s conduct amounts to a repudiatory breach of the contract of employment.  As held in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332 when an employer is “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, then the employee is entitled to treat himself as discharged from any further performance”.  It is the complainant’s position that the respondent failed to conduct a proper investigation of his bullying complaint and was in breach of their own Dignity at Work policy. 

The complainant submitted a complaint of bullying to the respondent in January 2021.  Following a meeting between the complainant, his union representative and the respondent’s HR department in February 2021 the union, as agreed, submitted a summary of the issues by email on 01 March 2021.  There were ten issues listed in the e-mail.  In the e-mail it was stated that the objective of the complaint was to have these matters fully investigated in the context of the respondent’s duty of care to him in the workplace. 

Summary of Evidence

Complainant’s Evidence

The complainant in his evidence outlined his employment history.  He described his duties and training with the respondent since 2015.  He then outlined the issues complained about to the respondent.  He described his complaints including exclusion from training, difficulty in obtaining a necessary alert device, delay in processing his wage claims, being assigned blame for surplus stock, being unnecessarily required to attend meetings during Covid, being excluded from a WhatsApp group, being denied access to the station and use of the computer at the station and being the object of remarks concerning his county of origin.

The complainant stated that he had tried to resolve his issues with the SO informally through the SACFO.  When those informal meeting had not resolved his complaints, he then made the complaint to HR.  He attended a meeting with HR, accompanied by his union representative, in February 2021.  The complainant went on sick leave on 11 February 2021 having been certified by his doctor as unfit for work due to stress.  The complainant stated that there was no safe place for him at work.

The complainant stated that he was paid sick pay from February to June 2021.  When his sick pay ended, in June 2021, he contacted HR about attending training courses. He was not offered a training course until October 2021.  He stated that he could not attend because he was not permitted to use the station jeep to travel to the course.

The complainant stated that he was unhappy with the short occupational health assessments carried out by the respondent’s OH doctor.  A third assessment was requested.  As the complainant was off pay since June 2021, he requested special leave because his job seekers benefit would stop later in the year.  The complainant stated that his request for special leave was refused and then he had to leave his employment as he had no further income when his job seekers benefit payment ended.

The complainant stated that he had applied for jobs, mainly online, since resigning.  He had made one hundred to one hundred and fifty job applications.

Cross Examination

It was put to the complainant that he had raised a grievance with the respondent and that as a result he had met with the head of HR.  The complainant confirmed this was correct.  He confirmed that he was unhappy with the outcome. 

Concerning his period of sick leave from March to December 2021 the complainant was asked if his own GP had certified him fit to return to work.  The complainant replied no, his GP had not certified him fit to return to work.  Concerning the occupational health appointments, the complainant confirmed that the OH doctor had certified he was fit to return to work.  However, the complainant took issue with these assessments as they were by phone and lasted only 5 minutes.  The respondent noted that five appointments were arranged but the complainant only attended two and the appointments were by phone to facilitate the complainant.

In reply to questions about sick pay benefit and PRSI contributions, the complainant confirmed that he had been paid his full his sick pay entitlement before moving to nil pay.  He also confirmed that being moved to nil pay was in accordance with the scheme and that no PRSI contribution could be made when he was on nil pay.

In re-examination the complainant stated that of the five occupational health appointments he attended two appointments and two were cancelled for family and Covid reasons.  The respondent had been notified of the cancellations in advance.

Evidence of Respondent’s Witnesses

Michael Finnegan – Station Officer

(Mr Finnegan was not the Station Officer the subject of the complaints)

The witness stated that he had been a sub-officer at the time the complainant was employed and made his complaints.  He had since been appointed Station Officer.  Concerning the issue of equipment Mr Finnegan explained that such requests must come through the relevant Station Officer.  The complainant did not receive a call out and needed to obtain a new alerter, which he requested from the sub-officer.  Mr Finnegan was asked to attend at the station with the Station Officer and the complainant to clarify that the correct procedure to obtain new equipment was to request the equipment through the relevant Station Officer and not the sub-officer.  The complainant had apologised and there was no further action.

Concerning the use of a WhatsApp group Mr Finnegan stated that the group was used for operational matters.  He stated that the only reason he was aware of for the complainant being removed from the group was because at the time the complainant was not operational. 

Concerning the delivery of a double amount of stock for the station Mr Finnegan stated that he was not present at that time.

Mr Finnegan stated that the signing off on time sheets is normally the duty of the Station Officer, who then takes them to Navan for processing and payment.

Regarding the allocation of places on training courses Mr Finnegan stated that the places were allocated by management, not the sub-officer or the Station Officer.  He stated that the complainant was not victimised by not being allocated a training place.  The complainant had questioned why he was not allocated a place on a course when five others had, the discussion became heated.  Mr Finnegan could not say how the discussion ended as he left before the end.

Cross Examination

In reply to a question about the dates when the complainant was added and removed from the WhatsApp group, Mr Finnegan said he could not give dates, he would only be able to guess.  The reason for removing the complainant was because at the time he was not operational.

Mr Finnegan confirmed that he was aware that the complainant had made a complaint in January 2021, but he was not involved in that complaint, so he did not know what had been discussed at that time. 

In reply to a question about payments, Mr Finnegan stated that he had been made aware that the complainant had himself brought time sheets to Navan.  He was not aware that the complainant had not been paid on time on three occasions.  Mr Finnegan had not been involved with payments for the complainant, but the usual procedure is for the Station Officer to sign the sheets and then bring them to Navan.

Concerning selection for a winch training course, Mr Finnegan stated that out of nine firefighters seven were selected, two were not.  The complainant was not the only person not selected for that course.  The selection for the course was made by senior officers not the Station Officer.

In re-examination Mr Finnegan confirmed that the complainant was not the only firefighter not selected for the winch training course.

Sheila Broderick – Chief Fire Officer

Chief Broderick stated that she was based in Navan and did not herself witness any of the alleged issues between the complainant and his Station Officer.

Concerning the risk assessments during Covid, Chief Broderick stated that risk assessments were carried out and suitable measures were put in place.  She stated that in situations such as Covid it is not possible to mitigate against all the risk.  She did not accept that the complainant was put at risk, some people had home issues, but suitable measures were put in place for all.

Regarding access to the station, Chief Broderick stated that all staff were told not to attend at the station other than for emergency calls.  Restrictions were put in place by policy for all, the complainant was not treated differently to other staff.

Chief Broderick explained that training of firefighters is planned on an annual basis.  The annual plan provides a broad range of training.  Training is scheduled based on length of service, availability and competency.  She had oversight of the annual plan but day to day the decision to allocate training places is made by the Assistant Chief Fire Office.  The allocation of training places is not made by the Station Officer.

Concerning an allegation about a female firefighter being humiliated by the Station Officer, Chief Broderick stated that the allegation had been clarified with that firefighter and she had no complaint to make.

Chief Broderick stated that the sick leave policy applied to all firefighters, that is three months full pay and three months half pay, thereafter nil pay.  The complainant had been paid in accordance with the rules of the policy.

Chief Broderick stated that the reporting structure involves all the firefighters reporting to the Station Officer.  She had considered with HR the proposal that the complainant would report to the sub-officer rather than the Station Officer, but she stated that was not possible as you could not have firefighters reporting to two different officers in the one station.

Cross Examination

Chief Broderick confirmed that she was based at headquarters in Navan and not at the station in Nobber.  She confirmed that she had met the complainant several times informally.

Concerning the alleged humiliation of a female member of staff, Chief Broderick stated that when the allegation was brought to her attention she checked with the individual.  The individual had no complaint to make.

Regarding payments to the complainant, Chief Broderick said she was aware that the complainant had said payments for him were not processed.  She was aware that the complainant had brought pay sheets to Navan, outside of the normal procedure.  Pay sheets are the business of the SO.  In one case the Station Officer had held the pay sheet as it was not correct.  She had a conversation with the Station Officer, and he had not signed the sheet as it was incorrect.  The complainant took the sheet to Navan, outside of the normal procedure when there was no requirement to do so.  Chief Broderick stated that she was aware of one payment not being processed.

In reply to questions about the complaint, Chief Broderick said she saw a copy of the complaint, she was not at any of the meetings and had no direct knowledge of the issues as she was based in headquarters.  The complaint was handled by the HR department.  She confirmed she was aware of the policy and that she was consulted and provided information but that the investigation was a matter for the HR department.  Facilitated meetings were recommended as the best route to resolve the matter.  The complainant had attended one session but did not attend the next session.  HR made attempts to rearrange the meeting, but the complainant was not available.

In reply to questions about the investigation of the complaint, Chief Broderick said that HR had dealt with the complaint, had obtained information and that six of the ten issues were not within the control of the Station Officer.  She said she didn’t think there were witnesses interviewed.

Concerning the allocation of places on the winch training course, Chief Broderick stated that the allocation was dealt with by another senior officer.  The allocation was based on seniority and suitability across all the stations.  It was not a decision made by a Station Officer alone.  The aim was to build up competencies over time, all firefighters are offered some opportunities over time, not each year.  It was normal practice for the senior officer involved in training to allocate places.  Chief Broderick was not herself involved in the allocation of training places.

Asked about special leave, Chief Broderick replied she was not aware of any special leave or any HR circular.

In reply to questions about the administration of the station WhatsApp group, Chief Broderick stated that she did not know about that and the allegation of exclusion of the complainant from the group was not an issue that had come to her attention.

Findings

 The respondent has in place a Dignity at Work policy which sets out procedures for dealing with harassment, sexual harassment and bullying in the workplace.  Section 2 of the policy sets out three processes available to assist staff who feel that they are being harassed, sexually harassed, or bullied in the course of their employment.  The three processes listed are: resolving the problem informally, by mediation or by investigation.  The policy states that an informal or mediated outcome is usually the most effective and satisfactory for the parties, but in some cases these processes may not be appropriate.  I note that the procedures in the respondent’s policy is in line with the procedure in the Code of Practice on the Prevention and Resolution of Bullying at Work 2020. 

The respondent’s Dignity at Work policy at Section 2 sets out their procedures for dealing with complaints.  The informal procedure in the respondent’s policy, like the procedure in the Code of Practice, contains two possible routes.  First, informal contact between the parties to address the unwanted behaviour, where the complainant feels confident to deal directly with the person complained about.  Second, informally handling the complaint through a manager or person in authority who has had appropriate training and experience and is familiar with the procedure to deal with the complaint on behalf of the respondent. 

In this case the complainant had attempted to address several his issues with his Station Officer at local meetings attended by the Senior Assistant Chief Fire Officer (SACFO) responsible for the Nobber Fire Station.  As the issues were not resolved to the complainant’s satisfaction, he and his union representative made the complaint to the HR Manager.  A meeting with HR took place at which the complaints were discussed, and it was agreed the union representative would summarise the complaints.  The summary sets out ten issues and requests that these matters be fully investigated.  The HR Manager proceeded to deal with the complaint in line with the policy following the second stage informal procedure.  It is important to note that the policy and the Code of Practice stress the value and effectiveness of resolving bullying complaints informally.  The Code of Practice states “It is good practice that all informal resolution avenues – as set out above – should be contemplated and where appropriate, exhausted before a formal process is invoked. Proceeding to a formal process should not be viewed as automatic and it is important that it is recognised that it is the reasonable evidence-based decision of management.”

The complainant claims that the respondent failed to conduct a proper investigation into a serious bullying complaint and failed to follow its own procedures.  I find that the HR Manager did fully investigate the ten complaints made by the complainant.  In his letter of 23 March 2021, the HR Manager, Mr Murphy, states that he gave due consideration to the complaints, provided the Station Officer with an opportunity to respond to the complaints and discussed a number of issues with senior management.  He then goes on to provide a response to each of the ten issues, concluding that six of the issues were outside of the direct control of the Station Officer as they were subject to Fire Service senior management decisions, instructions and procedures.  The evidence of Chief Broderick confirmed the finding that the majority of the issues were senior management decisions or instructions and outside of the control of the Station Officer.

The HR Manager found that the other four issues related to how the Station Officer acted and carried out his function.  Noting that the Station Officer holds a position of significant responsibility in the rank structure of the station and is accountable for the actions of the station and each of the crew members the HR Manager recommended a route to resolving the issues.  He recommended “a facilitated meeting between the complainant and the respondent (SO) would assist in accommodating understanding between the parties so as they may carry out their functions and duties in the context of the service they deliver and structure within they operate.”  I find that this recommendation is consistent with the respondent’s policy and the Code of Practice as an effective way to possibly resolve matters satisfactorily. 

The complainant claims that no witnesses were interviewed by the HR Manager, and I accept that is correct.  However, I am satisfied that the HR Manager followed the procedure as set out in the Dignity at Work policy, put the complaints to the Station Officer and recorded his response.  In addition, he contacted senior management in relation to several items.  I am satisfied that the respondent did take the complaints seriously, did investigate the complaints in line with their procedure and recommended a route to resolve the complaints in a constructive way.  The complainant was also offered the opportunity to appeal the outcome and recommendation of the investigation.  The complainant did submit an appeal to the Director of Services for Human Resources who agreed with the recommendation and encouraged the complainant to engage with an independent facilitator who could assist the parties.

The complainant, through his union representative, agreed to engage with the independent facilitator.  An independent facilitator was appointed.  On 16 November 2021 the facilitator met with the complainant and the Station Officer separately.  A further session was arranged to take place on 01 December 2021.  However, the complainant’s union representative notified the respondent the day before that the complainant was not available to attend.  The respondent attempted to arrange a new date and contacted the union representative twice, but no new date was agreed.  I am satisfied that the complainant did not exhaust the internal process to resolve his complaint before resigning.  He did not attend the facilitated meeting on 01 December 2021, and he resigned before a new date was arranged, despite efforts by the respondent to agree a new date.

The complainant resigned on 20 December 2021.  In his letter of resignation, he listed the reasons for his resignation.  The first reason is that he no longer had PRSI stamps to continue receiving Job Seekers benefit.  The complainant was certified as unfit for work by his GP from February 2021 until he resigned on 20 December 2021.  The complainant in his evidence accepted that he was paid his full sick pay entitlement.  Chief Broderick in her evidence stated that the scheme provided three months full pay and three months half pay and thereafter nil pay.  The complainant had exhausted his sick pay benefit in June 2021 and was moved to nil pay.  The consequence of moving to nil pay was that no PRSI contribution had been made for six months and the complainant no longer qualified for Job Seekers benefit.  The complainant and his union representative requested that the complainant be placed on paid “special leave”.

The union representative referred to the following paragraph from HR Circular 2/1976:

Special Cases

11.1 Should a case arise which is not covered by the instructions in this Circular Letter and in which the Head of Department is prepared to recommend the grant of leave, a special submission should be made to this Department.

It was the complainant’s position that this option had been used to assist other employees in certain situations where other leave is not available.  I note that this paragraph does not refer to sick leave and no details of the when and in what circumstances this was used for other employees was presented in submissions or at the hearing.

The respondent’s position is that this was not an option as the complainant was on sick leave as certified by his own GP.

There is a contradiction in the position taken by the complainant regarding sick leave and special leave.  On the one hand he was certified as being unfit for work by his own GP.  The respondent arranged five Occupational Health assessments to review the position, the complainant attended two and was unavailable for other dates.  The respondent’s Occupational Health doctor certified the complainant as fit to return to work, but this was not accepted by the complainant.  The complainant’s position was that he was unfit for work, confirmed by certification from his own GP, from February 2021 until he resigned.  It is not logical that an employee, having exhausted his sick pay entitlement, and being certified by a medical practitioner as being unfit for work becomes entitled to paid leave, unless the rules of the sick pay scheme are ignored, or the medical certificate is ignored.  I find that as the complainant was certified by his own GP as being unfit for work, he was not therefore entitled to be placed on any other type of leave during the period of sick leave.  I find that the respondent acted reasonably in accepting the complainant’s medical certificates stating he was unfit for work even though their Occupational Health doctor held otherwise.

The complainant had raised the issue of attending training courses whilst on sick leave.  Following discussion with the complainant’s union representative it was agreed that the complainant could attend a breathing apparatus course scheduled for 26/27 October 2021.  The complainant’s evidence was that he did not attend this course because he was not allowed the use of the station jeep to drive to the course.  The respondent’s submission was that the complainant had cancelled attending the BA training based on his GP’s advice.  The complainant had an opportunity to attend a training course, for which he would have been paid but, he for whichever reason he did not attend.  I am satisfied that the respondent acted reasonably in facilitating the complainant’s participation in a training course that would have assisted in his return to work.

As stated above the onus of poof rests with the complainant to establish facts to prove that the actions of the respondent were such as to justify him terminating his employment.  There are two elements to be considered in a claim of constructive dismissal – was the employee entitled to terminate the contract and or was it reasonable for the employee to terminate the contract. The complainant is relying on both the contract test and the reasonableness test to ground his complaint.

An employee may be entitled to resign where the employer’s conduct amounts to a repudiatory breach of the contract of employment.  The question to be decided is, was the respondent guilty of conduct which was a significant breach going to the root of the contract of employment, or which shows that the employer no longer intended to be bound by one or more of the essential terms of the contract?  It is the complainant’s position that the respondent failed to conduct a proper investigation into his bullying complaint thereby repudiating his contract of employment. Set out above is my finding that the respondent did fully investigate all the ten issues set out in the complaint and made a recommendation for the parties to participate in an independently facilitated meetings to resolve the issues.  I found that the respondent followed the informal procedure as set out in the Dignity at Work policy, which the management decided was the most appropriate way to respond to the complaint.  In addition, the respondent made efforts to facilitate the complainant’s return to work by agreeing to allow him to attend a training course while on sick leave and arranging up to five appointments with the Occupational Health doctor.  I find the complainant has not established facts from which I could conclude that the conduct of the respondent significantly breached the contract of employment or that the respondent no longer intended to be bound by the essential terms of the contract.  I am satisfied that the respondent’s response to the complaint and subsequent actions were taken to maintain a relationship of trust and confidence between the parties.  The respondent arranged for an independent facilitator to assist the parties in trying to resolve their issues.  The complainant agreed to engage in the recommended facilitated meetings but then only attended one meeting, then was unavailable for the next scheduled meeting and resigned before any further meetings were arranged.  I find the complainant resigned before the internal process had been exhausted.

The complainant’s position concerning special leave and income is that the respondent failed to act reasonably.  The respondent has in place a sick pay scheme.  The complainant acknowledged that he was paid all his entitlements under the terms of that scheme.  When his pay entitlements were exhausted, he moved to nil pay.  The rules of the sick pay scheme apply equally to all employees.  The complainant was treated the same as other employees having exhausted their entitlements under the scheme.  The rules regarding entitlement to Social Protection benefits are not a matter that any employer has control over.  The complainant’s request to be put on paid “special leave” whilst on sick leave was not consistent with him being certified as unfit for work.  I find that the respondent did not act unreasonably in applying the sick leave rules to the complainant in the same way as they apply to all employees. 

I am satisfied that the respondent took the complaint of bullying seriously.  Each of the ten issues specified in the email from the union representative were investigated by the HR Manager, following the procedure in the Dignity at Work policy.  That investigation followed the secondary informal procedure as set out in the policy, which is consistent with the procedure in the Code of Practice.  The HR Manager established that six of the ten issues were matters outside the control of the Station Officer.  The other four issues were in his view best addresses through independently facilitated meetings between the complainant and the Station Officer.  Following an appeal of that recommendation the complainant agreed to participate in the facilitated meetings but subsequently resigned before that process reached a conclusion.  The respondent throughout the process worked to have the complainant return to work, through Occupational Health reviews, agreeing participation in a breathing apparatus training and arranging for an independent facilitator to assist in resolving matters.  I find that the respondent did act reasonably in all the circumstances.

Conclusion

Having carefully considered the submissions and evidence adduced I find that the complainant was not dismissed.  The complainant resigned without completing the recommended independently facilitated meetings aimed at resolving the issues with the Station Officer.  In those circumstances the complainant had not exhausted the internal process before submitting his resignation.

I am satisfied that the respondent did not breach the fundamental terms of the contract of employment and did not intend to do so.  I find that in all the circumstances the respondent acted reasonably.

I find the complainant was not unfairly dismissed from his employment.

CA-00048465-001

Complaint pursuant to section 8 of the Unfair Dismissals Act.

Having inquired into the complaint and carefully considering the submissions and evidence adduced I find that the complainant was not dismissed.  The complainant had not exhausted the internal process before submitting his resignation.  I find the complainant was not unfairly dismissed.

Dismissal

Internal procedures

Constructive Dismissal

Reasonableness