Complainant

Respondent

Parties

Michael  O'Grady

Iarnrod Eireann - Irish Rail

Complainant

Respondent

 Parties

Michael O’Grady

Iarnrod Eireann-Irish Rail

Representatives

Donna Phelan Dillon Solicitors/ Emma Davey BL

Hugh Hannon CIE Solicitors/ Cathy Maguire SC & Niamh McGowan BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00048699-001

18/02/2022

This case ran over several days and concerns a claim for constructive dismissal. The Complainant has worked since a young man with the Respondent and has strong family and social links to the service. That relationship is not unusual for the service and gives some context to the protracted nature of the dispute and also to the lengthy hearing that followed at the Commission.

The Complainant was employed as a Station Manager in Pearse Station. On the 27th of June 2019 a

meeting was arranged by the District Manager (DM), to discuss a number of items including the return of fobs for carparking.

The essence of the dispute relates to a verbal conflict between the Complainant and his Manager about car parking arrangements for his crew. A temporary arrangement had been made pending upgrade works that were taking place and this temporary arrangement was becoming an operational block for related upgrade works and a new arrangement was required. There was resistance to this change from the crew, and the alternative arrangements were not viewed by the crew as suitable.

At a meeting with the Complainant’s manager along other team members; at a point the discussion escalated into a heated exchange between the Complainant and his manager about car park fobs. This was about arriving at a new car park arrangement.  It is accepted by the Complainant that he used expletives during this exchange. In essence the conflict arose because the Complainant couldn’t solve the problem.

The Manager perceived the exchange as more than a verbal exchange and believed that the Complainant touched him and classed this as an assault. The Complainant’s manager did not attend the hearing.

The Complainant’s holidays were scheduled, and the matter was left unresolved including the more pressing matter of the heated exchange between the Complainant and his manager. When he came back from holidays the Complainant was confronted with what he perceives as false allegations that he in fact had assaulted his manager.

Soon after coming back from holidays, he was asked to attend a meeting with his manager. Over several hours he was asked to attend that meeting and he refused to attend without being accompanied by a Union Official. This position was obviously framed against the backdrop that he had heard he was being accused of assaulting his manager. He perceived that the meeting would be about that allegation.

The meeting never happened as the Complainant refused to attend without being accompanied by his Union Official. This refusal in turn led to the Manager instructing the Complainant to go home for failing to comply with a reasonable instruction.

This instruction to go home was perceived to be a suspension by the Complainant. His manager and the Company saw the measure as way to mark the fact that the refusal was not acceptable; however, it was an opportunity to carefully consider the consequences of not following a reasonable request to attend a meeting. The Company saw this as entirely consistent with past practice and precedent where an employee is given time to reconsider their position. In fact, the Company stated the Complainant himself would be aware of that practice and could have either used it or informed a work colleague that he would use it. The Company stated this was not suspension.

The Complainant soon after was certified as medically unfit to attend work and this was directly linked to the events that occurred at work. At a point the Complainant was certified to engage in a process such as mediation or an investigation that would address the underlying cause of his absence.

A senior manager was nominated to investigate the dispute and both the manager, and the Complainant accepted this senior manager to be experienced and an acceptable investigator.

That report made no adverse findings about commencing a disciplinary investigation or negative finding about his manager, and this became a crux for the Complainant. He believed that his reputation had been damaged, and he deserved an apology from his manager. The report did note that the Complainant’s conduct contributed to the impasse and the line manager may have acted too quickly to send the Complainant home. However, it steered a conciliatory route and found the interpersonal escalation should be treated as an isolated incident, particularly as the two colleagues had worked so well together.

The Complainant alleges that that Company was partisan in how it conducted the investigation and in fact the investigating manager was not impartial. As he was out on sick leave, his benefit was coming to an end. He subsequently learnt that the investigating manager made a comment about this and how absent of pay it would put pressure on him to return to work.

The Complainant believes that he was denied an internal appeal to the CEO of the organisation and again this was evidence of bias.

The Respondent stated that on balance the process it followed was fair and reasonable. The process was being managed through an industrial relations frame of reference and the Complainant at a point moved from being represented by a Union Official to being represented by a Solicitor

The Respondent states that the Complainant is conflating the grievance procedure and the dignity and respect policy into one policy. They are separate and at no time was the dignity and respect policy initiated.  

It would appear on balance that the procedures adopted were in fact a hybrid of the grievance procedure and the dignity and respect procedures and tailored to meet a very difficult and challenging situation between two respected individuals.

The factual matrix shows that both the manager and the Complainant had a very good relationship up to the instruction to go home. The Company claims that they actively attempted to resolve the dispute amicably and followed what is good practice to attempt to resolve the issue informally. The crux of this dispute is the insistence by the Complainant that he receive an apology from his manager. That was not within the control of the Company. Every attempt to move the matter forward ultimately ran into a roadblock based on the insistence that the Complainant receive an apology from his manager.

The Complainant believes that his reputation has been diminished and sullied and that it was imperative that he did receive an apology. The direction to go home was precipitous and was not necessary and did amount to suspension and it was rare if it ever occurred to a manager of his level.

The internal process continued for many months and ultimately the Complainant did return to work.

Prior to his return to his role an alternative role was proposed with a different reporting manager. That role was not satisfactory and viewed as a fabricated role that the Complainant was ill prepared to hold.  The Complainant contends that practice under the dignity and respect policy required that his line manger should have been moved to another role or his reporting line changed, pending the outcome of an investigation. The Respondent stated that this was not possible, allowing for the interdependency between the two roles and the operational requirement that the Complainant and his manager work closely together that also was required for safety reasons.

The Respondent stated that the Complainant left the Organisation voluntarily and in fact retired. He returned to his role and then decided he would retire.

The Complainant views the retirement choice as forced and in fact he could have stayed for a significantly longer period. This in turn has given rise to losses as his final salary is lower and his actual annual income has significantly diminished.

The Complainant has not been able to seek alternative work since he left the service arising from very challenging personal family commitments unrelated to this dispute.  

The following details the sequence of events and timeline leading to the employment ending on the 24th of December 2021.

·       Heated meeting on the 27th of June 2019

·       On or about 28th June 2019 Complainant goes on leave

·       Complainant returns from leave on or about 11th June

·       Line Manager also on leave

·       Line Manager returns from leave and on the 16th of July 2019 contacts Complainant to meet at 11.30am and contact continues as Complainant refuses, last contact about 3.30pm

·       For failing to carry out reasonable instruction Complainant instructed to go home

·       Complainant certified sick on 17th July 2019

·       Investigation report issues January 2020

·       Complainant remains certified sick with some gradual improvement throughout 2020

·       29th of March 2021 Complainant medically fit to return subject to resolution of workplace trigger

·       10th of May 2021 Medically fit to return to work.

·       1st July 2021 Agreed date to return to work.

·       Leaves employment on 24th of December 2021 and subsequently draws down his pension benefit.

The conduct of the Respondent was most egregious. The Complainant was sent home and suspended without any due process. The Company failed to conduct a fair and impartial investigation of the Complainant’s grievance. The investigation was biased and the investigating manager made very prejudicial comments about putting pressure on the Complainant by letting his sick pay run out. The company failed to follow its own procedures and ignored the grievance that the Complainant had been falsely accused of assaulting his manager and ignored the damage that side stepping this serious false allegation would have on the Complainant’s mental health. The Complainant was denied the right of appeal. The procedure under dignity and respect provides for a change in reporting pending the conclusion of any investigation; the company failed to move the Complainant’s manager to another role. The Respondent contrived an alternative role that he was not trained to do. The cumulative actions of a lengthy suspension and prejudiced proceedings where his complaint was not taken seriously and led to his employment ending by reason of the unreasonable conduct of this employer.

The conduct of the Complainant to a large measure has led to this situation where he resigned. The Complainant failed to recognise that his own conduct was less than acceptable. He failed to carry out a reasonable instruction. He was disrespectful to his line manager by using expletives to vent his disagreement with his manager’s decision to ask staff to move carpark.

The process commenced by the Respondent was agreed with the parties and now after the event is being criticised. It was not the standard grievance process; however, it did adequately and sensitively set up a process to make a finding on the grievance and to recommend a way forward.

The report made negative findings about the Complainant which he ignores. However, the Respondent decided not to progress with discipline and addressed the issue as matter to be resolved by compromise and mediation. That observation is drawn directly from the investigation report. That proved impossible as the Complainant would not engage in that process without preconditions being met and insisting he receive an apology from his line manager.

The conduct of the Complainant in fact has been unreasonable. Arising from the Complainant’s reaction to being sent home, this dispute has escalated. This policy is a default and standard practice when someone refuses to carry out a reasonable instruction, it is not suspension.

 The Company was mindful of being conciliatory and non-blaming. However, those efforts were fruitless as the frame of reference of the Complainant was to blame his manager without any self-awareness of how he contributed to the breakdown in the working relationship. He is not a victim.

The employment ended by reason of resignation.

The Respondent states that the Complainant is conflating the grievance procedure and the dignity and respect policy into one policy. They are separate and at no time was the dignity and respect policy initiated.  It would appear on balance that the procedures adopted were in fact a hybrid of the grievance procedure and the dignity and respect procedure. Written submissions and oral evidence conflicted about it being an Industrial Relations Grievance Complaint or a Dignity and Respect investigation.

What is clear an investigation took place took place and made the following finding:

Conclusion;

It is evident to the investigator that prior to this incident the workplace relationship

between the District Manager and the Station Manager was positive and progressive.

During the course of this investigation they spoke highly of the value each brings to the

business.

However, it is also evident and accepted by both parties that an incident did occur. Based

on the acceptance of the Station Manager and supporting witness testimony that he used

inappropriate language and on the balance of probability, the Investigator finds that the

approach taken at the meeting of the 27th June by the Station Manager was not in line

with the behaviour expected of a manager of his standing.

The emails written by the District Manager to his Passenger Services Manager and to the

Station Manager Pearse on the 28th June, would further support the contention that the

District Manager had real concerns in relation to the Station Manager’s behaviour at the

meeting on the 27th June.

It was also claimed that the District Manager raised his voice and berated the Station

Manager when they spoke in private. From the investigator’s review of the District

Manager’s office and the witness testimony provided by Mr Sutton as the reasonable

bystander, the investigator finds that the District Manager did not raise his voice or berate

the Station Manager in the private interaction between the two men.

It was claimed by the District Manager that the Station Manager ‘poked’ him with his

finger. This is disputed by the Station Manager that any such incident occurred. Due to

the fact that no other person was present or stated that they witnessed such an event,

the investigator cannot reach a definitive conclusion on this matter.

In relation to the events on the 16th July the investigator believes it was reasonable for

the District Manager to expect any member of his management team to attend and discuss

any and all difficulties in regard to their workplace relationship when requested. The fact

the Station Manager refused to meet his District Manager is outside what the organisation

would normally expect from a manager at this level. The investigator concludes that the

Station Manager was incorrect to refuse to have a discussion. If the discussion had gone

a certain way to make the Station Manager believe he needed Trade Union support, he

had the option to withdraw and then seek a Trade Union representative to attend a future

meeting.

The District Manager was within his rights to send the Station Manager home for refusing

a direct instruction to come to his office, however the investigator believes that the District

Manager could have informed the Station Manager sooner of the potential for that action

to apply, or the fact that he was contemplating that action stemming from the Station

Manager’s refusal to meet.

Recommendation;

At the conclusion of the interviews with both parties, they were asked what the best

outcome to the situation was, for them. The Station Manager stated he wished for a

positive return to the workplace and to restore reputational damage. In regard to the

District Manager he wished for the Station Manager to return to this duties and that he

had no issue working with the Station Manager going forward.

In conclusion taking into consideration all of the testimonies and comments from both

parties, it is apparent that there exists a desire to return to a positive working relationship.

It is therefore recommended that in an effort to restore this relationship, mediation is the

best avenue to achieving this goal. It is further recommended that the Mediator be sourced

externally and be suitably qualified in conducting such interventions.

The Complainant was profoundly disappointed with this outcome and continued to ask for his name to be cleared and that he receives an apology.

Several questions arise such as the fairness of the procedure followed by the Company and the perception by the Complainant that his manager in fact was shielded throughout this process by a biased process. He contends that the grievance he made should have been heard, and a finding made to uphold his grievance or find against him if there was evidence to do so. What is clear according to the Complainant is that no evidence supported the claim of assault. That in turn meant that the allegation made against him should have been determined to be vexatious and not in effect ignored. The failure to make a clear finding in essence meant that the Complainant would be the victim of an unfounded allegation that has caused him considerable stress and anxiety.

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(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

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

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.

There are two questions to ask:

·       Was the conduct of the employer so unreasonable that it destroyed the relationship of trust and confidence between the company and the employee?

·       Did the company breach a fundamental contract of his employment?

The Complainant asserts that the failure to apply fair procedures has led to an intolerable situation where a very serious allegation in effect hangs over him and he cannot clear his name.

SI 146/2000 sets out the standards to be applied relating to a grievance procedures:

4. GENERAL PRINCIPLES

1.     The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.

2.     Procedures should be reviewed and up-dated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practice generally.

3.     Good practice entails a number of stages in discipline and grievance handling. These include raising the issue with the immediate manager in the first instance. If not resolved, matters are then progressed through a number of steps involving more senior management, HR/IR staff, employee representation, as appropriate, and referral to a third party, either internal or external, in accordance with any locally agreed arrangements.

4.     For the purposes of this Code of Practice, “employee representative” includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.

5.     The basis of the representation of employees in matters affecting their rights has been addressed in legislation, including the Protection of Employment Act, 1977 ; the European Communities (Safeguarding of Employees Rights on Transfer of Undertakings) Regulations, 1980; Safety, Health and Welfare at Work Act, 1989 ; Transnational Information and Consultation of Employees Act, 1996 ; and the Organisation of Working Time Act, 1997 . Together with the case law derived from the legislation governing unfair dismissals and other aspects of employment protection, this corpus of law sets out the proper standards to be applied to the handling of grievances, discipline and matters detrimental to the rights of individual employees.

6.     The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•    That employee grievances are fairly examined and processed;

•    That details of any allegations or complaints are put to the employee concerned;

•    That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

•   That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

•   That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

7.    These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

8.    As a general rule, an attempt should be made to resolve grievance and disciplinary issues between the employee concerned and his or her immediate manager or supervisor. This could be done on an informal or private basis.

9.    The consequences of a departure from the rules and employment requirements of the enterprise/organisation should be clearly set out in procedures, particularly in respect of breaches of discipline which if proved would warrant suspension or dismissal.

15.    The operation of a good grievance and disciplinary procedure requires the maintenance of adequate records. As already stated, it also requires that all members of management, including supervisory personnel and all employees and their representatives be familiar with and adhere to their terms.

The Complainant was absent from work arising from what he perceived to be an extremely stressful situation and that absence in turn was certified by the Company Doctor. The procedure adopted by the company must be viewed in that context. The procedure was agreed in advance and the Complainant was represented by his Union Official.

The subsequent email by the investigating manager can be interpreted as being biased towards the Company related to sick pay benefits running out. The question arises was that comment fatal to a fair hearing. In essence it was a view that the Complainant would not seriously engage until sick pay ran its course.  On balance that cannot be concluded as fatal; the comment was an observation about the probability of engaging in mediation when sick pay stopped, a process the investigator believed to be the best way forward. It cannot be inferred that it amounted to a partisan conclusion about the dispute and grievance. An important fact is the Company amended its sick pay policy so that the employee would continue to have some benefit. However, while the Complainant wanted his absence to be treated like an occupational injury where payment continues under different terms, this was not classed as that and so ultimately his sick benefit would run out.

The Complainant has clearly suffered deeply over the events that blew up over car park fobs being returned and what followed. However, allowing for what he experienced as deeply undermining; what also occurred was an abusive exchange between him and his manager, where he used expletives. While he acknowledges this, the weight he gives to it is slight in contrast to the alleged vexatious conduct of his manager.

That exchange gave rise to a request to meet with his manager when he returned from his holidays. He refused as the Complainant believed that he would be disciplined and was being asked to attend a disciplinary meeting. The other possibility was a refusal to attend because he was being falsely accused of assaulting his manager and would no longer work with him. The question that arises was that response reasonable? It is important to note that the Complainant and his Union Official stated that was the practice at the Company where conflict or a grievance existed, as was the case here, that a meeting would not be held unless a Union Official was present. 

In hindsight that may have been the best course of action. However, it is also the case that grievances and workplace differences should be attempted to be resolved informally first. The Complainant had not raised a grievance at this point. The discussion was to be about the heated exchange between the two colleagues. Both had got on well up to this meeting when matters escalated over the instruction to get the fobs back. The request to meet, while it may have been uncomfortable, was not unreasonable. In fact, on the evidence given at the hearing the request was made over several hours so that the Complainant could take stock of his stance not to attend.

The direction to go home must be viewed in the context of an employee failing to take an instruction. The Contract is one that is classed of service and not for services. The essence of that contract is the right to ask the employee to carry out a reasonable instruction and for that request to be complied with. That was not complied with, and the Complainant was given time to consider his position before he was instructed to go home. It was not a suspension. It is commonplace that this direction is given when an employee refuses to carry out an instruction.

The cherry picking of deficiencies in the procedures are not compelling principally because they were agreed to between the parties in advance. The Complainant had the option of referring his complaint to the Workplace Relations Commission after the finding made by the investigating manager. The findings of the investigating manager could not be classed as irrational and were measured, drafted to restore the working relationship.

The appeal process was to the Commission and not to the CEO.

However, the procedures adopted by the Company did vary from the standard procedures. There were good reasons for that based on the stress related absence and an attempt to be conciliatory rather than adjudicative.

It is more likely that an adjudicative process would have classed the Complainant’s conduct both relating to the expletives he used towards his manager and his refusal to attend a meeting as serious breaches of conduct. The Complainant is blind to that probable conclusion, and his frame of reference relates primarily to how he was offended. However, this was a situation where his manager was also offended. The Report was structured to facilitate a compromise.

That technically was a deviation from procedures but was entirely sensible as the intent was to retore the working relationship. This procedure was agreed to in advance by both parties and after the event to criticise it because it was not a formal hearing, is a weak argument. The rights of the Complainant to be heard were in fact deeply respected and the Complainant’s Union Official was fully kept informed of progress and the desired way forward. What is clear is that the Complainant takes issue with the findings of the investigating manager. However, they are rational and not unreasonable

The change in representation to legal representation from Union representation in turn gave rise to a break in how the process was being managed. The informality of Industrial Relations with an emphasis on voluntarism no longer was appropriate, as is standard practice, Union Officials will end their engagement and involvement in the dispute resolution process when a Solicitor is instructed by their member.

The Complainant found it impossible to enter a process unless it would guarantee the restoration of his reputation against the backdrop of what he saw as damaging reputational allegations that were false. Unfortunately, that was not possible to guarantee.

The parties have opened extensive case law to support their respective positions. The test set out in Berber provide a useful framework to assess if the conduct complained of meets the test to establish a constructive dismissal. While Berber related to a wrongful dismissal and not to a statutory remedy, it is a helpful framework when dismissal is in dispute arising from alleged repudiation of the contract.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case:

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 v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

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 facts show that from the time of the investigation being complete in January 2020 about an incident that occurred in mid-June 2019, the alleged constructive dismissal occurred in December 2021. During this period the employee was on certified leave for most of the time up to having a return-to-work date in July 2021.

The employer had proper cause to conduct themselves as they did. There is nothing repugnant or vexatious in how they managed the process. The facts show that the conduct of the Complainant led to the instruction to go home. He failed to attend a meeting and was given time to consider his position. The subsequent procedures and investigation adopted by the Respondent were sensitive and agreed between the parties against the backdrop of the Complainant’s stress related absence from work. The Respondent attempted without success to commence a mediation process as recommended form  the Investigation and Report that followed.. The Respondent detailed a temporary alternative role. The facts show that on balance the Complainant set down preconditions after the investigation concluded, that impeded any conciliatory process, those conditions could not be met as they were not in the gift of the Employer to force the Complainant’s line manager to apologise.

 It was not reasonable based on the Complainant’s conduct, which was not unblemished based on his own evidence and his use of expletives at the June 2019 meeting, to move his line manager or to change the reporting level to the next level, as that would have serious safety and operational risks. The employer acted with reasonable cause.

The Complainant’s hurt while understandable at a human level was not caused by the Respondent. The Complainant’s conduct at the meeting where there was a heated exchange in June 2019 with his manager was unacceptable. The refusal to attend a meeting with his line manager again was not reasonable. What follows is an explanation that such conduct was reasonable and to be ignored unlike the allegation that he assaulted his manager. The facts show that the Complainant and his line manager had a heated exchange, that is accepted by the Complainant. A heated exchange between the two work colleagues when others were not in attendance as they had been asked to leave the room. There are no witnesses to what occurred and so it is one word against the other. The Line Manager never attended at the hearing.

The evidence on balance tends to show that the incident that caused most upset to the Complainant was the instruction to go home when he failed to attend at a meeting with his line manage. That was the event that most likely gave rise to a lengthy certified absence from work.

 The allegation that he had assaulted his manager was not the controversy that gave rise to the lengthy absence, it was being sent home. That was viewed as a suspension and a punishment and in turn a predetermined decision on what the Complainant viewed as a false allegation that he assaulted his manager. However, that is a very one-sided view. The instruction to a Station Manager to go home must be viewed as a dramatic and stressful development. However, the conduct of the Complainant gave rise to that outcome. The Respondent’s decision to exercise that right in hindsight might be viewed as heavy handed; however, it was not a suspension rather the default practice to mark the Complainant’s card that he was moving into dangerous territory by refusing to attend a meeting, despite being allowed to consider that request over several hours.

The Respondent has sought to reach an amicable outcome to this very difficult situation between two managers. Their conduct cannot be classed as unreasonable, nor did they breach a fundamental condition of the Complainant’s contract. He received all his contractual benefits. I find he was not suspended and the procedures adopted by the company were reasonable and conciliatory. I find that the right of appeal for the Complainant would have been to the Workplace Relations Commission and not to the CEO as a step level investigation had been concluded by a senior manager and a finding made. In any case even allowing for a technical breach, the most important question to answer is was the conduct of the employer so unreasonable that the employee could not be expected to put up with it:

1. 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.

I find no substantial case to justify a finding that the Respondent acted unreasonably when judged objectively such that the employee cannot be expected to put up with it. I find that the Complainant was not unfairly dismissed and determine that the complaint is not well founded.

I find no substantial case to justify a finding that the Respondent acted unreasonably when judged objectively such that the employee cannot be expected to put up with it. I find that the Complainant was not unfairly dismissed and determine that the complaint is not well founded. The employer acted with reasonable cause.  The employment ended by reason of resignation.

Constructive dismissal.