Complainant

Respondent

Parties

Anthony  Mulgrew

Bus Eireann

Representatives

In person, assisted by family member. 

Ms Cliona Boland BL instructed by Mr Hugh Hannon ,CIE Solicitors

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-00057619-001

06/07/2023

The complainant was employed by the respondent from 4th April 1998 until 15th July 2022.

This complaint was received by the Workplace Relations Commission on 6th July 2023.

On the first day of the hearing, I was asked to extend the time limits from 6 months to 12 months as outlined in section 8 (2) (b) of the Act.

Section 8 (2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General –

(a)   Within the period of 6 months beginning on the date of the relevant dismissal, or

(b)   Within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause.

Reasonable cause existed in this particular case and no objection from the respondent was made before me.

Introduction

The complainant is pursuing a case against his former employer, Bus Eireann for constructive dismissal under the Unfair Dismissals Act, 1977.

The complainant no longer has access to his company owned computer.

Because of this he states that he is unable to produce some evidence and dates in parts will be vague. 

Compelled to take early retirement at 62, the complainant’s decision was significantly influenced by a prolonged period of workplace bullying and a hostile environment at Bus Eireann. The lack of adequate support during this time, especially considering his deteriorating mental health, played a crucial role in his involuntary retirement decision.

A number of people at Bus Eireann were aware of the complainant’s mental health problems at the time as a result of the treatment he was receiving at work but offered virtually no support in either dealing with his grievances or discussing his decision to take early retirement.

As detailed in his submission, just a few months earlier he notified the HR department that he wished to put his original retirement date on hold, as he recognised, he was not in a good place mentally to make the decision.

Just a few weeks later, shortly after returning to work from a period of sick leave for stress and depression he was pressurised for a new retirement date by his manager, one of the individuals responsible for his early retirement.

Under such pressure unfortunately he gave in and gave a new date.

On reflection at that point the complainant strongly believes HR should have stepped in and discussed his decision with him, unfortunately they did nothing, leaving the complainant feeling isolated and with no other choice than to proceed with his retirement. 

No action was taken by the employer on his return to work following his final period of stress related sick leave with the company. During that period of sick leave, the complainant had reported his grievances to the HR department which included naming individuals he believed responsible for his condition.

On returning to work the complainant was put back working with those individuals instead of being moved to another location under a different manager at least until a full investigation was completed into his grievances. 

The failure of Bus Eireann to take appropriate action left the complainant with a feeling of isolation and as a result he was forced into early retirement well before he intended to end his career.

The complainant believes Bus Eireann have failed in their duty of care to him as an employee throughout his ordeal.

Safety, Health and Welfare at Work Act 2005 (Part 2 Section 8)

Duties of Employer

Every employer shall ensure, so far as reasonably practicable, the safety, health and welfare at work of his or her employers.

To manage and conduct work activities in such a way as to prevent any improper conduct or behaviour likely to endanger employees.

Safety, Health and Welfare at Work Act 2005 (Part 2 Section 13)

In order to prevent bullying, horseplay or any other behaviour that has a potential to endanger employees’ safety, health and welfare at work, appropriate procedures must be put in place.

Bullying and Harassment Prevention procedures and disciplinary procedures need to be put in place. Ensuring that competent staff are in place and that appropriate Codes of Conduct are applied will help in complying with these legal requirements.

Safety, Health and Welfare at Work Act 2005

Bullying at Work    

Bullying in the workplace has been described in various ways.  The Health and Safety Authority’s definition is that it is:

"repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual ‘s right to dignity at work."

Employers have a Duty of Care to all employees, to ensure they are both mentally and physically safe at work and that their health is not adversely affected by work.  This Duty of Care means employers must behave and react reasonably in relation to such matters.

Managers and supervisors have a particular responsibility to promote dignity in the workplace for all. They should be alert to the possibility of bullying behaviour and be familiar with the policies and procedures for dealing with allegations of bullying.  Their behaviour may be modelled by others, as it may be considered acceptable. That’s why managers, supervisors and those in authority should be aware of their own behaviour at work and not engage in improper conduct in any form.

HSA Code Of Practice on the Prevention and Resolution of Bullying at Work 2.8

What are the effects of Bullying at Work

For the employee concerned, (the target of the bullying behaviour) the effects can include stress, associated physical and/or mental ill health, low morale, reduced performance and lower productivity. Some people decide to leave their employment, exposing themselves to financial and other strains by so doing

Organisational Culture

The culture of an organisation is an important factor in creating, establishing and maintaining a positive workplace environment free from bullying, intimidation or any on-going negative behaviour which might lay the foundation stone for a bullying culture. There are several elements important to a positive workplace including good leadership (leading by example), a culture of involvement and a proper flow of communication, intolerance of inappropriate behaviour, training of staff on acceptable behaviour or conduct, an open and transparent pattern of relating based on mutual respect and dignity for all. A positive culture is one in which employees are comfortable raising issues of concern to them, especially of inappropriate behaviours and where there are supportive, effective and fair processes underpinning this in place 

Anthony Mulgrew

Work History

●       1998-2002              Bus Driver                                                  Galway Depot

●       2002-2006              Bus Driver                                                  Sligo Depot

●       2006-2012              Acting Depot Inspector                           Sligo Depot

●       2012-2016              Depot Inspector                                        Sligo Depot

●       2016-2022              School Transport Supervisor                  Sligo Office

School Transport Supervisor - Role

A field-based role that required the Complainant’s presence in the Sligo office once a week for admin duties, as outlined to the Complainant by Ms Fiona Scanlon when he took up the role.

Main duties include:

●       Ticket validation on school transport buses

●       Dealing with applications from parents for the use of school transport for their children

●       Completing eligibility checks on a number of applications

●       Arranging school transport for special needs pupils

●       Completing mileage logs for school transport routes

In previous roles the Complainant demonstrated high levels of customer service, acknowledged through various commendations. His work was showcased in the monthly company magazine, highlighting his commitment to service excellence

Working Environment Sligo Office

A small office in both size and workforce, the main office houses six office-based staff members, these people are split between the School Transport Team and Customer Complaints Team. Other people such as Inspectors and Supervisors would at various times be in the main office at times according to work commitments.

The teams are separated by a small divider and due to the room size and proximity of people to each other within the room all conversations taking place can be heard by everyone present.

There is also a small meeting room, kitchen and an office used by the School Transport Manager whilst working in Sligo. The meeting room can of course be used if required for any private conversations taking place.  

Case Overview

July 2016, shortly after taking up the position of School Transport Supervisor until his forced retirement in July 2022 the Complainant contends he was the victim of bullying and undermining behaviour by the School Transport Chief Clerk Elaine Maloney on numerous occasions.            

▪        From 2021 the treatment he was receiving escalated when his line manager Fiona Scanlon also began making life very difficult for him and certainly appeared to have joined up with EM in an attempt to force the complainant into early retirement.

▪        The work atmosphere, particularly under Elaine Maloney, School Transport Chief Clerk, and Fiona Scanlon Regional School Transport Manager, was rife with intimidation and disrespect. Instances of bullying were pervasive, including being consistently ignored, spoken to in a derogatory manner, and publicly demeaned.

▪        Elaine Maloney’s actions, such as unwarranted phone calls and hostile interactions, contributed significantly to the toxic environment. Fiona Scanlon’s apparent complicity and lack of intervention further exacerbated the situation.

▪        The Complainant was selected for the role from a number of candidates following an interview process led by the Regional School Transport Manager Fiona Scanlon.

▪        Within weeks of taking up his role he was called into the Sligo office by EM, he was shocked to say the least when she told him that he lacked the capabilities for the role and that he should return to his previous role. The complainant obviously disagreed with her views and didn’t understand in what capacity she was telling him this as he didn’t report to her. The complainant also didn’t understand on what she was basing this opinion, as he was new to the position and had received minimum on the job training. He informed EM that his manager FS had expressed no concerns and that he had no intention of giving up the role. However, her words badly knocked the complainant’s confidence at such an early stage in his new role.

▪        From that day until the day he was forced into involuntary retirement, EM set out to make his life very difficult at work and he had no doubt her sole objective was to get him out of the company. It was clear to him and within a short period of time to anyone in the Sligo office that EM disliked him.  To this present day he has no idea why.

▪        The behaviour of EM towards the complainant ranged from totally ignoring him whilst he was in the office, speaking to him in a harsh tone without making any eye contact to berating and belittling him in front of colleagues within the office.

▪        Prior to her appointment as Regional School Transport Manager, FS worked alongside EM in the Sligo office, and both knew each other very well.

▪        The complainant reached a point at which he decided he would need to get away from FS and EM so decided to apply for the same role working out of the Athlone office. He applied for the position and believed with 23yrs service and 5yrs experience in the role he met all the criteria and had a good chance of being selected. He was however very disappointed when informed that he had not even made the shortlist for the position so didn’t make the interview stage. This made no sense to him at all; the complainant asked on numerous occasions both before and after his retirement for a written explanation as to why he was unsuccessful but to date has not received it. The rejection of his application for the position in Athlone, devoid of an interview despite his extensive service and experience, raised legitimate concerns of discrimination. 

▪        The Complainant got to the stage where he was dreading going into work and most certainly of going into the office. He knew what was happening was wrong¸ but for a long time he didn’t know what, if anything, he could do about it other than leave or work with a different manager in another office. Not getting the Athlone position had taken the option of moving office away certainly for the foreseeable future.

▪        The Complainant felt that by reporting it would be a failure on his part in not being able to deal with it himself.

▪        However, following a particular incident in which EM belittled him in the office in front of a number of colleagues, he decided he had to do something. He did not wish to have a verbal confrontation with EM in the office, so he decided to put his concerns on an email to her that day and copied his manager in on the email.

▪        It took a lot for the complainant to take this step, but he honestly believed it would be the start of a resolution process now that he had expressed his concerns in writing directly to the individual and his manager.

▪        On receipt of his email FS contacted him to set up a conference call, his initial reaction was positive as he believed actions may now be taken on a resolution to the issues. Prior to this he had a number of work-related conference calls with FS. These calls would be video calls with everyone involved on video. However, in the call set up after his email he was the only person appearing by video, this was the first and only time he had taken part in such a call.

▪        No one else apart from FS and the complainant were introduced as taking part in the call so he assumed it was just the two on the call. The call lasted approx. 10/15mins and consisted of FS berating the complainant for complaining about EM in the email. She was fully supportive of EM and dismissed the complaints completely.

▪        Her final words to him on the call were “don’t be acting like a big baby”

▪        As the call ended the complainant could hear another female’s laughter on the line which he believed was that of EM who must have been listening in on the call and may have been the reason that FS did not appear on video. The Complainant believed EM was either with FS whilst she (FS) was berating him on the call or on another line listening in.   

▪        The company policy on Workplace Bullying contained within the Dignity and Respect document clearly outlines the Responsibilities of Managers and Supervisors which include “provide a good example by treating all in the workplace with dignity and respect”. It also outlines the role and responsibilities of managers on receipt of a claim of bullying; these were totally ignored by FS.

▪        The Complainant had followed the guidelines outlined in the policy in the Complaints section. Under Informal Procedure it advises individuals to make their concerns known to the person(s) responsible if feeling able to do so.

▪        Having followed these guidelines and receiving such a negative response the complainant felt he had hit a brick wall and in fact his mental health deteriorated further from that point. 

▪        Given the deterioration in his mental health and the stress he was putting on close family members who were aware of what he was going through, he could see no other course of action at this stage other than to remove himself from it by taking early retirement.

▪        The complainant began the process of retirement and agreed a date of April 2022.

▪        Despite giving notice to retire the Complainant did not find the peace of mind he expected, instead he became very frustrated at the thought that he was allowing these individuals to force him out of his job after 24yrs service. The thought of having to leave made him ill so much so that he was signed off work by his GP due to stress around September 2021.

▪        The Complainant decided to return to work in Oct/December and was given a Fit to Work letter from his GP.

▪        Due to Covid restrictions, consultations with his GP had been completed remotely, because of this he believed it would be beneficial for him to come into the surgery for a chat. A date for this was agreed when I picked up my Fit to Work letter.

▪        Once again on my return-to-work FS showed no concern for his wellbeing by speaking to me regarding my condition or offering any type of support.

▪        Approximately one week after returning to work I informed FS that my GP had arranged a meeting to meet to pop in and see him for a catch up.

▪        Shortly after leaving the surgery FS contacted the complainant by phone, she asked how things went, and he informed her everything was fine. Despite having been back at work for two weeks FS informed me that I would need to go back to my GP and ask for a Fit to Drive a Bus letter.

▪        FS informed me that without the letter I would need to go on sick leave again.

▪        As my role didn’t involve bus driving, I told her this wasn’t required but she was adamant that I could not continue working until I had the letter.

▪        When I informed her that the doctor would not issue such a letter, she gave me the contact details of the company’s Chief Medical Officer and told me to contact the CMO and ask for a letter to be issued.

▪        Following the instructions of FS the complainant phoned the CMO, 

▪        The CMO berated the complainant over the phone, she actually said “how dare you contact me directly” she refused to discuss issuing a letter stating I would have to wait until I attended a prearranged meeting with her in April.

▪        Bearing in mind he had just returned to work after a period of stress related sick leave he was shocked by the response he received on contacting the CMO on the instructions of FS.

▪        Unbeknown to him at the time my GP actually contacted the CMO regarding the need for such a letter. The CMO confirmed with my GP that as his duties did not involve driving a bus no letter was required.

▪        One has to ask why FS did not discuss if there was a need for a letter with the CMO before excluding him from work.

▪        The Complainant found this whole episode very distressing in the way he was harassed and bullied by the CMO and FS at a time when they were well aware he had just returned from a stress related illness.

▪        The Complainant found this very hard to handle and once again was signed off work with stress and depression by his GP.

▪        Being isolated at home during this time was very detrimental to his mental health and he was suffering badly because of it.

▪        By February 2022 the complainant had tried a number of things to resolve the issues he faced with EM and FS. He had applied for and failed to get a job away from the Sligo office and he had brought his grievances directly to the individuals, but this had only made things worse.

▪        The Complainant came to the conclusion that he couldn’t just walk away and let these people believe that they had been successful in forcing him out of the company after 24yrs. He also believed he had a duty to other colleagues to expose their behaviour and prevent anyone else having to suffer like him at their hands.

▪        It was also quite obvious to him that both FS and EM may well require retraining with regards to their responsibilities as outlined in the company Bullying Policy.

▪        The report from his doctor will detail periods of sick leave and from September 2021 after being diagnosed with acute stress reaction and being prescribed diazepam for stress management. The GP also confirms this condition was as a result of stress in the workplace.

▪        In his own words the complainant states - My last day at the company was marked by an absence of basic courtesies and respect typically accorded to a long service employee. The manner in which my exit was handled by FS – without a formal farewell but rather a dismissive handover in a car park where I was handed a service lamp in a black bag, was indicative of the disregard for my contributions and dignity.

▪        This was the final humiliation I suffered at the hands of FS, a very sad end to a career that for the most part I thoroughly enjoyed.   

Bullying and Undermining Behaviour.

As covered in the Case Overview section from the time Elaine Maloney questioned the complainant’s capabilities for the new role he had taken up weeks earlier, she set out to justify her opinion by making his time at work very difficult.

▪        Having been informed by the complainant’s manager Fiona Scanlon when appointed to the role that he would only need to attend the Sligo office one day a week for admin duties, Elaine Maloney had other ideas.

▪        Elaine Maloney was calling the complainant on a regular basis asking him to come into the office to pick up work from her or a member of her team. The complainant was certainly aware that this was not the case with his colleague who held the same position as him.

▪        The phone calls from EM always began with “where are you” despite the complainant telling her many times it was not her place to track his movements.

▪        On a number of occasions, she also phoned the complainant shortly after he had finished work as per his contract hours. When the complainant didn’t answer she would leave a voicemail asking where he was. She also made a point on these occasions when she was next in the office to ask in a derogatory tone “where were you when I phoned.

▪        On the vast majority of times when he went into the office EM would either totally ignore him, speak to him without lifting her head or speaking to him in a derogatory tone. It was obvious to the complainant observing the body language of those present on these occasions, that they were embarrassed by EMs behaviour.

▪        On a number of occasions when entering the office with a colleague, EM would jump up, go into the kitchen to make the colleague tea, she would then tell the complainant “you know where the kettle is”.

▪        During the Christmas period 2020 the complainant brought a box of chocolates in for all colleagues working in the Sligo office including Elaine Maloney. She was not actually in the office at that time, so he left the gift on her desk. On his next visit into the office after Christmas she walked up to the complainant in front of everyone in the office, handed me a bag containing my gift and said “you need these more than I do.

▪        Throughout this time the complainant was getting no support from his manager FS, when he was bringing the behaviour of EM towards him to her attention. She at all times supported the views of EM and dismissed the complainant entirely. There was never any suggestion to sit down with EM and himself to try and resolve the issues.

▪        The complainant realised slowly but surely, she was condoning the behaviour of EM and was on the side of EM in getting the complainant  out of the company.

▪        Around September 2021 the complainant brought a number of logs into the office for the attention of the admin team. There was one particular log that he believed needed some of the detail explained to EM and told her this as she sat at her desk. Without lifting her head, she kept repeating in a derogatory tone “I want all your work”. She was completely ignoring what I was trying to explain. This was done in front of all the office team, leaving the complainant totally embarrassed and feeling very low.

▪        The complainant felt at this stage that enough was enough, not wanting to confront EM in the office in front of colleagues he emailed her shortly after. He also copied his manager FS in on the email.

▪        In the email the complainant pointed out to EM that she had no right to speak to me like that. Especially in front of colleagues. He made it clear that she had embarrassed him and she should never speak to him like that again.

▪        Clearly making sure his manager was aware he expected her to get involved. A short time later FS contacted him and said she wanted to set up a conference call.

▪        What followed is detailed in the case overview, but in summary FS did nothing other than support EM. As a manager she had a duty and responsibility to take appropriate steps to stop this behaviour. She knew at this stage that this was not the first time EM had belittled the complainant in front of the office team.

▪        The complainant had on a number of occasions emailed his manager FS complaining about the behaviour of EM. On a number of these occasions, she actually had a go at the complainant  “for annoying her”.

▪        Shockingly not long after the incident in the office regarding the logs there was another incident in the office with EM when the complainant brought a log in to the admin team.

▪        In front of everyone in the office EM spoke to the complainant like a school child telling him to write the whole log out again. He told her he saw no need to rewrite the whole thing as there was clearly no problem with it. She of course disagreed so he had to stand in front of her and write the whole log out again.

▪        It’s probably an indication of the state of his mental health at that time that he acted like a school child and followed her instructions instead of walking out of the office.

▪        Whilst this was going on FS walked into the office, the complainant said to her “Fiona this is getting ridiculous now”.  FS unsurprisingly backed EM fully; this was all done in full view of the office team.

▪        The complainant was eventually forced into taking involuntary retirement, as part of the retirement package employees are offered a post retirement course to help in dealing with retirement.

▪        When the Complainant made enquiries about this course, he was informed that the courses had been suspended due to covid and so none were available. However, he did become aware some time later that this may not have been this case. He was given the names of two employees who had attended this course a few months before his retirement date and two employees who attended shortly after he had left.

▪        The complainant has asked Bus Eireann on numerous occasions for clarification on this, but to date has received no response on the matter. This includes asking John Sheridan a number of times in writing.

Failures to Address Complaints

Fiona Scanlon Regional Transport Manager

▪        The complainant emailed FS on a number of occasions regarding the behaviour of EM towards him, these emails were sent on his company email account and as he has no access to the account since leaving on the 15th of July 2022 he is unable to produce them as evidence.

▪        Following the incident regarding the logs around September 2021 the complainant emailed both EM and FS making it very clear that the behaviour of EM towards him during that incident was totally unacceptable and it had to stop.

▪        FS was fully aware that this was not a one-off incident but failed in her responsibilities with regard to the complainant’s Safety, Health and Welfare.

▪        She (FS) totally ignored her responsibilities with regard to the company’s Anti Bullying Policy, Safety, Health and Welfare at Work Act 2005 and the 2020 Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work.

▪        Her only answer to complaints was to say to the complainant  “don’t be acting like a big baby”

The complainant contends that If Fiona Scanlon had addressed his complaint and indeed her own behaviour towards him in the proper manner he has no doubt he would still be working in Bus Eireann.

Failures to Address Complaints

Ailish Ryan HR Manager

▪        On the 22nd February 2022 whilst on sick leave the complainant emailed Ailish Ryan the Regional HR Manager. The complainant  believed that by contacting a senior HR manager detailing what was happening to him he would finally get someone to take the matter seriously and his case would be investigated.

The complainant wrote the following to AR on the 22nd February 2022: *Ailish misspelt on first contact

*Elish

I am taking early retirement in April. The problem is I feel I am being forced out. I am a school transport supervisor in the Leitrim area.

 I have almost 25yrs service with Bus Eireann.

I would like a meeting with you at your earliest convenience please to go through the issues I have. This is a serious issue Elish as I feel I am being bullied into retirement

If you want to call me on my personal number that’s not a problem as I have no access to emails when I am out of the office.

Anthony Mulgrew

▪        A short time after receiving the email AR contacted the complainant by phone, she asked for further details on his grievance.

▪        The complainant explained to her that he was being bullied at work by FS and EM and felt that their behaviour towards him had the aim of forcing him to take early retirement. The complainant gave her the details of his email to EM and FS and the very negative response he got to this from FS.  

▪        The complainant also informed AR that his failure to make the shortlist for the position in Athlone despite his service and experience led him to believe he was being discriminated against.

▪        As a senior HR Manager and due to the seriousness of the grievances the complainant assume that AR recorded and retained on file details of their conversation.   

▪        On the 28th February 2022 the complainant texted AR asking for an update on his grievances, she responded the same day stating she would get back to him in a day or two.   

▪        After a couple of days had passed, the complainant hadn’t heard anything from AR so he texted her on the 3rd March 2022 asking again for an update.

▪        AR texted the complainant on the 4th March stating that she had sent me an email that morning. To say he was disappointed with the content of the email sent by AR is an understatement. The complainant sent a response to AR that same day but received an out of office message stating she was now on annual leave.  

The main points from the email the complainant received from AR on the 4th March are as follows:

⮚     The contents of my email to her caused her significant concern.

⮚     She had contained her conversations regard my grievances to FS and a Ms Miriam Flynn (Chief Schools Officer).

⮚     She could find no evidence to suggest that anyone wishes or indeed is exerting pressure on him to retire early.

⮚     She would welcome the opportunity to give the complainant  formal feedback on his failure to make the shortlist for the Athlone position.

On receipt of that email on the 4th March, the complainant  responded almost immediately expressing her disappointment at her response to his allegations and was surprised to receive an out of office to say that she had gone on annual leave.

From: Tony Mulgrew Sent: 04 March 2022 11:39 To: Ailish Ryan <Ailish.Ryan@buseireann.ie> Subject: RE: T Mulgrew, Sligo

Alish

 I would like to see the reason I did not make the short list for the Athlone position. I would also like to say that I am dumbfounded by the response to the complaints I had regarding bullying. I am currently reading Bus Eireann’s document on dignity and respect in the workplace. I feel I have not been taken seriously and am being fobbed off. I am back to sleepless nights again and this response has not helped.

 Regards,

 Tony.

▪        ARs handling of the complainant’s grievance fell well short of the complaints procedure as outlined in Section 8 of the company’s Bullying Policy.

▪        AR was at that stage fully aware the complainant  had attempted to resolve this directly with EM and FS but was unsuccessful. She was also aware that his manager FS had failed totally to deal with the issue when he copied her in on his email to EM.

▪        The investigation completed by AR had taken just a few days, no doubt influenced by the fact she was due to go on annual leave on the 4th March.

▪        Bearing in mind the steps the complainant  had already taken, the mediation process stage had passed and a formal investigation should have been put in place by AR, in accordance with the Bus Eireann Anti Bullying policy   .

▪        In addition her handling of his grievance falls well short of the process as outlined in the   2020 Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work.        

▪        The quality of the investigation by AR only made things worse if that was possible, the complainant believes he had a right given the seriousness of his grievances to a full independent investigation.

▪        Had he been afforded this there is every reason to believe he would still be working with Bus Eireann.  

▪        Once again as a senior HR Manager the complainant  assumes AR recorded and retained details of her investigation on file.

▪        After making AR fully aware how dissatisfied I was with her findings I informed her that I wished to put my retirement on hold.

▪        The complainant was determined not to walk away without someone taking his grievances seriously and having a full investigation completed.

▪        This despite the fact that FS was now aware of his contact with AR, and the repercussions that could have on him at work.

▪        This was borne out on his return to work in May when FS began pressuring him for a new retirement date.

▪        FS was of course aware of the complainant’s report to AR and in particular the fact that he believed he was being forced into retirement, she was also aware of course that he was returning from a period of sick leave related to stress and depression brought on by the treatment he was receiving from individuals at work including her.

▪        Bearing in mind the above the complainant was shocked even by her standards that the only thing she was interested in was getting the complainant  to put in a new retirement date. 

▪        Around this time AR informed the complainant that she was herself retiring shortly and she would hand his case over to Nicola Mulhern, the complainant reminded AR that part of his grievance was the failure not to make the shortlist for the Athlone position and in fact Nicola Mulhern would have been part of that decision making process.

▪        The complainant was losing any kind of hope for a resolution at this stage and the fact that AR had even suggested NM looking into his case when she was actually a part of it, this left the complainant at an all-time low.

The following is a copy of a text the complainant sent to AR on the 30th March 2022; it is a cry for help and support.

This  text message received a dismissive response, indicating a disregard for the complainant’s mental well-being. This lack of empathy and action from AR was a clear violation of his rights as an employee and a person in a vulnerable mental state.

Copy of text message by AM sent to Ailish Ryan on the 30th March 2022

Ailish

Tony Mulgrew here.

I want to put my retirement date on hold for the time being. As I have said before I have worked for Bus Eireann for 25yrs and never envisaged leaving like this. When I first thought about retirement I was planning to go in July but now feel that I made that decision under a lot of work related stress. When I spoke to you initially I explained to you what I was going through at work.

I feel the outcome of your investigation was nothing short of “tell him anything and he will go away”.

I never once asked for an acting supervisor to help with my workload all I wanted was dignity and respect.

I don’t think anyone understands how this is affecting me.

I am having horrible thoughts every now and again.

I am not the type of person who tries to screw the company for the sake of it. I just want to leave like the first day I joined feeling good. What really gets to me is if the people who treated me like dirt knew what their previous inspector friends were getting up to they would be sick.  Anyway Ailish I have an appointment with my doctor today and I am dealing with SIPTU, I am hoping I don’t have to go down the road of solicitors as that is not me.

Regards

Tony

Response to this text from Ailish Ryan 30th March 2022

Tony I am off with covid I will contact you when I am back. I will let Fiona Scanlon know of you decision.

Regards

Ailish

▪        On the 7th April I received an email from AR, in that email AR referred only to my concern regarding the Athlone selection process. She had totally dismissed everything else including my enforced retirement and mental health issues.

▪        As AR was now retiring I was informed that JS would be taking over the case.

As I expected everything regarding my grievance moved very slowly and life working with FS and EM was becoming unbearable. My mental health was once again in a poor state. I honestly got to a stage where I couldn’t take it anymore and decided on giving a new retirement date which was the 15th July.

I believe it should be noted at this stage that despite what I had reported to HR, no one offered to sit down with me face to face to discuss my case. This really added to me believing no one was going to support me and the only real option was to leave.

Failure to Address Complaints.

John Sheridan HR Manager.

When JS took over the case the complainant assumes he also was able to refer to the case file which AR had opened up, that is of course assuming that AR had compiled a file.

The complainant believes  AR also forwarded all emails between her and him to JS so he would therefore have become aware shortly after taking the case over of all the mains issues to date:

●       The complainant’s email to FS and EM detailing his bullying complaint against EM

●       The lack of any action his  my manager FS regarding the complaint and indeed her dismissive attitude to it.

●        Communications including details of the bullying behaviour of EM and FS towards me.

●       The results of her investigation and my response to that

●       The complainant’s text message to AR dated 30th March, and her total lack of empathy and action to it despite his vulnerable state.

JS emailed the complainant on the 6th July, 9 days before his involuntary retirement date stating he had received the correspondence from AR and that he would like to discuss the concerns raised by AR. As far as the complainant was aware AR had not expressed any concerns following her investigation.

From: John Sheridan (BE Broadstone) Sent: 06 July 2022 18:06 To: Tony Mulgrew <tony.mulgrew@buseireann.ie> Subject: FW: T Mulgrew, Sligo 

Tony, good evening & I hope you are keeping well.

I refer to the below emails, which Ailish kindly passed onto me prior to her retirement. 

I echo the concern referend by Ailish, and would welcome the opportunity to discuss same with you.  

If acceptable to you, I would like to have a discussion on same – and happy to have this either on Teams, but preferably in person. Can you please advise your preference, and I will look to arrange. 

Regards, John Sheridan

Senior Manager, Employee Relations

The complainant responded to JS and in an email to him dated 13th July and  confirmed he would like to meet him in person to discuss his case.

From: Tony Mulgrew <tony.mulgrew@buseireann.ie> Sent: Wednesday, July 13, 2022 5:32:25 PM To: John Sheridan (BE Broadstone) <John.Sheridan@buseireann.ie> Subject: Re: T Mulgrew, Sligo

 Hi John

John I am retiring on Friday, so could you send any further correspondence to mulfahy@mail.com or phone me on 0877423301. Unlike the last few School Transport inspectors that retired I am not allowed to keep the work phone and number. John I am willing to meet you in person to go through the issues I have, because after 25 years’ service I will be walking out the door treated like someone who gave nothing to the company. I am willing to travel to chat to you. I would appreciate if it could be on a Thursday or Friday. Just give me a date and I will confirm my attendance.

Regards,

Tony.

▪        JS gave the complainant a date of the 21st July, which was six days after his leaving date.

▪        JS next contacted the complainant  on the 15th July, his last day with the company. Ironically despite what he was going through, part of his message read “hope your day is going well”.

▪        JS confirmed that he would like to meet the complainant on the 21st July in a hotel in Athlone @ 10am. The first opportunity the complainant was going to have to discuss his grievances with a senior manager was after he had left the company.                  

▪        As arranged, the complainant met with JS on the 21st July 2022, JS, in the complainant’s opinion, came across as very sympathetic and the complainant felt that finally someone was listening to him. The complainant went through all his issues with JS, these included the way he had been treated by EM and FS, the response of FS when he attempted to get a resolution, failure to get even an interview for the Athlone position and the quality of investigations to date.

▪        When the complainant  left JS that day he did so with a sense of optimism for the first time, he honestly believed action would be taken.

▪        Sadly once again he was let down by a senior manager, after 3 weeks had passed he had heard nothing and contacted JS a number of times via email and text over the next 5 weeks.

⮚     16th August via Text requesting an update – No response

⮚     19th August via email requesting an update – No response

⮚     30th August via email requesting an update – No response

⮚     31st August via text requesting update – No response

⮚     6th September via email requesting an update – No response

⮚     9th September - Totally frustrated that JS appeared to be ignoring him and hoping no doubt that he would just go away the complainant emailed a person he believed to be JS’s manager, Jean O’Sullivan 

⮚     12th September - Finally nine weeks after the meeting with JS he received a response, no doubt as a result of him contacting his manager on the 9th of September.

Having waited so long on a response the complainant was very disappointed with the content. JS was asking him for more details which of course he could have requested any time since our meeting on the 15th July.

▪        He could also of course refer to the case file which should have contained all the details he was asking for; this of course led the complainant to the disappointing fact that there probably was no file.

▪        One of the many points raised with JS at the meeting and others previously was the circumstances surrounding his application for the position in Athlone. With 18yrs service behind him and a further 5yrs experience in the role he was applying for he was shocked not even to be given the opportunity of an interview.

▪        It is the complainant’s belief that he was discriminated against either on age and/or negative feedback from EM and/or FS.

▪        In responding to this JS stated that he could contact Nicola Mulhern for feedback on his application. As NM played a leading role in the selection process for the Athlone position the complainant believed this should have been looked at by an independent person.

▪        The complainant also pointed this out to Ailish Ryan when she suggested the case was taken over by Nicola Mulhern when she (AR) was due to retire. She agreed with this and that is why she then asked JS to take over the case.

On receipt of the response from JS on the 12th September the complainant informed JS via email that he was going on holiday and would send him the details requested on his return.

⮚     10th October – The complainant sent JS some examples via email of the issues he had faced from EM and JS, he had asked for specific dates etc. but as the complainant had no access to his company email account or company telephone which held some text messages since leaving, he was unable to give specific dates.

⮚     10th October - JS acknowledged receipt of the complainant’s email that same day stating he would now look into the matter and get back to him.

Unsurprisingly a couple of weeks passed and he heard nothing.

⮚     26th October – The complainant emailed JS pointing out once again that he felt he was ignoring him and that the documents he had requested (contract and job description) had still not been received by him.

⮚     26th October – JS responded to this email stating he was not ignoring the complainant and that on his return to the office on the 1st November he would give it his utmost attention.

The complainant realised he was not going to get any satisfaction from anyone at Bus Eireann and felt he was being played in the hope that he would not pursue the matter any further. It was at this point that the complainant started to consider obtaining legal representation.  

The complainant believes it was early November 2022 when he received a voicemail from JS stating he believed he had a resolution for him and would be in touch.

The voicemail was the last contact the complainant  had from JS and he has no idea what his proposed resolution was and why he didn’t follow it up with him.

Failure to Address Complaints

Summary

Both Senior HR Managers have failed in their responsibilities to ensure the complainant’s health and safety at work in accordance with the Safety, Health and Welfare Work Act 2005 whilst he was employed at Bus Eireann. They also failed to treat the serious grievances reported by the complainant in accordance with the Company’s Anti Bullying Policy and the HSA Code of Practice on the Prevention and Resolution of Bullying at Work.

▪        The complainant believes he should have been moved away from his duties in Sligo when he returned to work after a period of sick leave due to work related stress and depression whilst a full independent investigation into his grievances was conducted.

▪        The complainant believes an exit interview should have been arranged with him to discuss the reasons for taking early retirement.

▪        The decision-making process should have been a concern to HR considering only a few months earlier the complainant has raised concerns about being forced into early retirement.

It was only in March 2022 that the complainant reported to HR that he was being bullied into retirement by a number of individuals, yet no one saw the need to discuss the reasoning behind his decision to put a new retirement date in just a couple of months later.

Had either of them or anyone else within Bus Eireann paid any real attention to the situation and offered support, the complainant believes he would have continued to work at Bus Eireann at least up until the age of 65.

A summary of the first submission from the respondent reads as follows:

Background to the Complaint

On the 22nd February 2022, Mr Mulgrew emailed the then Regional HR Manager Ms Ailish Ryan to advise that he wished to retire in April of that year (some eight weeks later). In this correspondence Mr Mulgrew made reference to a belief that he was being ‘bullied into retirement’. This is the first time any such allegations were made by Mr. Mulgrew.

Ms. Ryan responded to this email on the 04th March 2022 and asked Mr Mulgrew to contact her directly so that the contents of the email could be fully investigated.

On 08th April 2022, Ms Ryan spoke with Mr Mulgrew and Mr. Mulgrew told he was meeting with his SIPTU representative to discuss matters.  Ms. Ryan asked Mr. Mulgrew to put any allegations in writing so they could be investigated. Again, no response was received to this request.

On the 27th May 2022, Mr Mulgrew contacted the Regional School Transport Manager Ms Fiona Scanlon to advise that ‘I would like to retire on the 15th July 2022’.

Mr Mulgrew retired on the 15th July 2022.   At no point during the period from 22nd February to 15th July did Mr. Mulgrew submit any complaints of bullying and harassment or anything to support any claim he was being forced to retire.

Company Arguments

1.                Despite numerous requests to do so, at no stage did Mr Mulgrew submit a formal complaint of bullying or confirm any allegations supporting his contention that he was being bullied into retirement to allow a proper investigation of what he now contends.

2.                Mr Mulgrew was not forced into retirement. In an email on the 04th March 2022 Ms Ryan stated that “you are a valued member of the School Transport Team in Sligo and, as I emphasised strongly during our ‘phone conversation there is absolutely no evidence to suggest that anyone wishes or, indeed, is exerting any pressure on you to retire early. In fact it is quite the opposite. If you continue to feel contrary to this, I would please ask you to follow this up with me directly and without delay in order to allow me investigate such allegations”.   No reply was received from Mr. Mulgrew.

Conclusion

The company would respectively request that the Adjudication Officer would dismiss this complaint, the claimant having not commenced any internal process to allow any allegations to be fully investigated in advance of his voluntary retirement.

Second submission.

The Complainant was first employed by the Respondent as a designated minibus driver based in Galway for which he signed a one year probationary contract on the 24th day of July 1997 and was given inter alia the “rule book” and a copy of agreed procedures for disciplinary matters. He commenced a new contract the following year on 17th April 1998 with improved pay. It was in June 2012 that the Complainant was appointed as a Depot Inspector, Class 2, in the Respondent’s Bus Éireann depot in Sligo with effect from 1st June 2012. It was this contract of employment that provided him with inter alia entry to the C.I.É Superannuation scheme. This documentation has been provided to the Complainant by an employee of the Respondent’s HR Department in recent times and the Complainant has submitted them to supplement his complaint, albeit with criticisms.

The Complainant was later successful in obtaining the role of Service Supervisor in Schools Operations in the Respondent’s Sligo headquarters of the North western region, with a start date of 26th February 2018. The Complainant was written to by letter dated 19th of that month, enclosing a contract of employment and he read and signed the said contract on 8th March 2018. A photograph of this document has been submitted electronically to the Commission with a request for it to be transmitted to the Complainant also. Copies of the original will be provided if available for the hearing.

The job has been referred to by the Complainant as School Transport Supervisor. The role is one that is required for the School Transport Scheme. The correct and official title of the role is “Service Supervisor” and that is what the Respondent and its employees/witnesses will refer to it as. For the avoidance of doubt, the parties are referring to the same role, in using either Service Supervisor or School Transport Supervisor (or, indeed, School Supervisor).

The employment agreement provides for a remuneration of fifty-five thousand euro per annum, gross.

It is a term and/or condition of this agreement that “normal retirement age” is anytime after attaining the age of 60 years. The Respondent, who has a date of birth of 29th July 1959, attained the age of 60 years in July 2019. At that point in time, he had reached normal retirement age. Though he could work on for less than six years, it is submitted that he had attained retirement age as per the terms and/or conditions of his contract of employment and that the reference to early retirement is a misnomer and is an inaccurate reflection of matters. It was open to him to retire from July 2019 and naturally bring the contract to an end. He did so 3 years later, also in line with the terms and conditions of employment.

The Respondent disputes the fact that there has been a dismissal and the onus on proving there was in fact a dismissal is placed on the Complainant. It is a demonstrative fact that the Complainant had reached normal retirement age; in the absence of a complaint of discrimination on the grounds of age (which there is none in being), there can be no dismissal on the grounds of an early retirement.

OTHER HISTORICAL AND BACKGROUND FACTS

When he obtained the role, the Complainant lived in Carrick on Shannon in Co Leitrim.

Bus Éireann administers the School Transport Scheme on behalf of the Department of Education. The guidelines of the Department of Education School Transport Scheme define the requirements for pupils and the parameters within which school bus services are provided. The Complainant was a “Service Supervisor” for the operation of this scheme for the County of Leitrim. While the Complainant’s line manager, Ms Fiona Scanlon was responsible for the overall delivery of the school transport for Co Leitrim and answered to the Department of Education and Skills in relation to many aspects of the scheme, it was the Complainant who managed the practical aspects of the Leitrim school transport scheme. For example, a Service Supervisor was required to check the services morning and afternoon, to deal with disciplinary issues on services (e.g. Student misbehaviour towards driver), inspect school buses, check on contractors including checking on nominated drivers, do vehicle checks, check tickets, etc. A Service Supervisor was provided with a staff van and fuel was provided. In the three terms of the school, they were required to carry out one check per service per team.

As alluded to, school bus services are provided using Bus Éireann part-time school bus drivers and private contractors on hire to Bus Éireann. For the avoidance of doubt the School Transport Scheme covered all schools including special education schools and pupils. In the school year 2021/2022 in Leitrim, 1,940 pupils per day were catered for, there were 145 routes in the county, there were 5 Bus Éireann part time drivers and 20 private contractors on hire to the Respondent; this entailed 80 contractor or vehicles as well as 80 nominated drivers, as nominated by the Contractors.

The Complainant’s hours of work were 8.00 to 17.30 five days per week (Mon – Fri). Ms Scanlon was (and is) the Regional School Transport Manager for the North West, based in Sligo. The Complainant worked with her and, as referred to in his submissions, also with Ms Elaine Moloney. Ms Moloney was previously a “Chief Clerk” and reported to Ms Scanlon. There was a realignment of titles within the Respondent and all chief clerk roles became management roles; Ms Moloney continued to work for Ms Scanlon after she became a manager. Her interaction with the Service Supervisors was practical in nature and concerned a lot of administration. The reason for the administration and paperwork was because each step of the scheme needs to be sanctioned by the Department of Education. As such, information regarding particular routes and pick-ups for individual children or groups of children are of pivotal importance if a route and/or a pick-up is going to be sanctioned. It goes without saying that without Departmental sanction, there will be no transport for the particular child. This includes school-goers who have special needs and are obtaining special education.

It will be submitted that the School Transport Scheme as administered by the Respondent on behalf of the Department of Education and Skills was, like many other areas, a difficult and challenging environment for the last 3-4 years. Ms Scanlon, the Regional School Transport Manager for the North West, managed Donegal, Leitrim, Sligo and Mayo during this time. The challenge in 2020 was Covid and school closures; with the return of schools, the challenge was social distancing in 2021; and in 2022 the announcement of free school transport increased pressures regarding deadlines and a 25-27% growth in the user numbers. The Respondent will call evidence that suggests the Complainant was comfortable working remotely during the pandemic school closures and, like a lot of their team, found the post-pandemic return to work conditions as challenging, but as a team they slowly got through the backlog in their work.

There was one particular issue relating to the foregoing, that the Complainant found cause to raise directly with the HR Manager Ailish Ryan (now retired) when he claimed he felt bullied, and he has alluded to it in his submissions. This regards the fact that an Acting Supervisor was assigned to Co Leitrim at one point (post Covid) and the Complainant felt this was an affront to him and, presumably, this indicated he was being undermined in his role. What actually occurred was much less sinister and did not happen solely to the Complainant. It is a fact that 2 of the Service Supervisors (Co Sligo S.S. and Co Leitrim S.S. who was the Complainant) were both off for periods of illness leave and there occurred a large backlog of work in both of these counties (from in or around November 2022). The Respondent put in place additional cover by assigning the Acting Supervisors to these counties. This operated to assist the catch-up in both Leitrim and Sligo. It was not done to undermine the return to work of the Complainant and this was explained to him by HR in his discussion with Ms Ryan (now retired) at in or around end of February 2022 and confirmed in the email following up on his concerns (dated 4th March 2022).

In terms of his duties, the Complainant provided matters such as his hours of duty, breaks, and allowances claimed to his line manager, Ms Scanlon. She will give evidence that she felt their interactions were always courteous and friendly. She will also give evidence that specifically contradicts his account of his final day (and week at work) it will be shown that it is regrettable how the Complainant interpreted his exit from the Respondent.

The Complainant on the other hand, interacted, with the former chief-clerk then manager Ms Moloney on different items e.g. The completion of forms to ground the applications for sanctions from the Department, e.g. On a new pick-up for named students. Ms Moloney requested forms from the Complainant in order to provide Ms Scanlon with full details of each application to the Department so that Departmental sanction to go ahead with the service could be obtained. Ms Scanlon regularly held meetings with Department contacts, and she relied on Ms Moloney to feed her the information; Ms Moloney in turn relied on the Complainant to compile this information from his work “on the ground” as he was accustomed to spending approximately four days on the road in Leitrim.

The Respondent will call evidence that will fully explain the interactions which the Complainant complains about when he refers to MS Teams meeting and his verbal complaint against his colleague Ms Moloney. This will also contradict the interpretation that the Complainant has taken from the interaction and the Respondent’s evidence, it is submitted, will vindicate the other employees involved.

The Respondent will also call evidence about how the Complainant was always treated normally by the colleagues he worked with in the Sligo depot and will explain the full picture, which it is submitted will illustrate no evidence of any bullying or anything approaching bullying or the accepted legal definition of it. The Complainant will call evidence that disputes how he says he was treated in the Service Supervisor role. The Complainant will clear up any issues that irritated the Complainant or could be perceived to be occasions that were unfair. The Respondent regrets any unhappiness that the Complainant experienced as not being able to do the pre-retirement course and will explain how this came about through an unfortunate set of circumstances.

The Adjudication Officer will note that the address on the medical letter/report provided to the Complainant for the purposes of this complaint lists a Castlerea address as the Complainant’s current place of residence. This is relevant in relation to his claims that he wished to move to the Athlone depot (Service Supervisor role there) because of how he was being bullied in Sligo. In fact, the Complainant was set to move to Co Roscommon which borders Athlone and he gave this as the reason for wanting to apply for the Athlone role. In October 2021, he had missed the deadline for the internal competition of the Service Supervisor job in Athlone. He contacted the Respondent and stated inter alia “I currently live in Carrick on Shannon but I will be moving in the very near future to Roscommon” and saying that is why he would like to express an interest in Athlone, if it was not too late to apply. It is respectfully submitted that this is an important issue that goes to the credibility of the Complainant’s entire case, given his focus on the lack of shortlisting for interview for this role; or rather, it is possible that the Complainant had misconstrued past events and has, regrettably, interpreted the past workplace interactions in a manner that considers anything or everything that happened in his working life in a certain period of time as being against him or not in his favour. It is respectfully submitted that is possibly through inadvertence on his part, and not by design.

In contrast with the Complainant’s entire submissions, the Respondent will call evidence that the Complainant first raised the idea of retiring to his line manager in June 2021, which is prior to his sick – certification for the period commencing on or about 16th September 2021 (which ran to early 2022). This flies in the face of his entire written submissions and his medical letter, which suggests he made a “rash decision” in January 2022 to retire. In fact, the Complainant raised it, in a jovial manner on 1st June 2021 stating something along the lines of “I’m thinking of retiring next year”. Conscious of her role in succession and forward planning, his line manager responded along the lines of “when you do decide, let me know your dates and what your intentions are”.

LEGAL ISSUES

As defined in section 1 (b) of the Unfair Dismissal Act 1977, as amended, Constructive dismissal is the termination by the employee of his contract of employment with his employer, whether he/she gives prior notice of the termination to the employer, in circumstances where the conduct of the employer is such that the employee was entitled or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment. There is a heavy onus on the plaintiff to establish a case of constructive dismissal.

There has been no breach of contract on the part of the Respondent. Cases of constructive dismissal, it is accepted, require a high level of proof to justify involuntary resignation from employment. Even where the Commission come to the opinion that a respondent’s handling of a situation fell far short of best practices between employer and employee, it does not automatically follow that the onus of establishing a dismissal has been discharged by the complainant. Failure to invoke grievance procedures can give rise to failures in constructive dismissal claims.

In addition, the Respondent did provide the Complainant with a copy of any grievance and disciplinary procedures, which it is submitted he ought to have used. Such a procedure should be provided at the commencement of employment pursuant to clause 3.3 of the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. 146 of 2000). The equivalent was provided to him when he started in 1997 and 1998. In addition, it was updated when he started working in the depot in Sligo. Finally, it was provided for when he commenced as Service Supervisor in 2018. In addition, the Complainant was someone who himself dealt with disciplinary issues on a regular basis, albeit within the school transport and student arena; nonetheless, he was conversant in the terminology and was versed in the existence of policies including grievance procedures.

In his own words, per the submissions, he refers to policies of the Respondent. Furthermore, on 4th March 2022 in an email to Ailish Ryan (HR) he stated he was reading the Dignity and Respect in the Workplace document, but he failed to involve this policy or rely on it at any time prior to his cessation of work or in the months thereafter when he was communicating with the Respondent’s staff.

The Complainant referenced his dignity and respect but failed to categorically outline where it was being affected and thus, they were not allowed a chance to remedy it. No formal complaint was raised, and no actual investigation was sought. Where he sought informal assistance, he was dissatisfied with it but did not take the matter further in any coherent way. Objectively viewed, in the circumstances of his emails and texts (which largely focus on not getting feedback the way he wanted it), the Respondent responded adequately in all the circumstances and continued to try to support him.

An employee can be subjected to unacceptable treatment which may fall short of conduct that justifies a constructive unfair dismissal. In the case of Walker, Walker & Keating v Sodexho Ireland Limited UD 921, 922 and 923/2006, the Tribunal used the then accepted (since confirmed) definition of workplace bullying to determine whether the conduct justified a constructive unfair dismissal or not. The claimant argued that they had been bullied and harassed by their supervisor and team leader and that there had been a lack of management action in resolving the grievances. The Tribunal descripted the deterioration in employee relations as being in the nature of a potentially resolvable temporary workplace quarrel or feud, aggravated by a lack of management procedures and implementation which fell short of the standard expected in the context of current industrial relations and modern human resource practice. However, in spite of these findings, they did not consider the behaviour could come within the accepted definition of workplace intimidation, harassment or bullying and thereby found that the claimants had not been constructively dismissed.

In this case, the one incident clearly described and particularised by the Complainant concerned a single incident comment by the manager the Complainant was providing documentation to, which was followed up on by his line manager in a Teams call (involving both the Complainant and Ms Moloney, as will be explained in evidence) occurred in August 2021. The Complainant continued working with these colleagues until July 2022 (albeit with a period or periods of leave in between). A single incident of poor communication or critical words cannot of itself be considered to constitute bullying or harassment.

In the seminal case of Sheehan v Continental Administration Company Limited UD85/1999, the Employment Appeals Tribunal considered the obligations on a claimant proving that they have made reasonable attempts to mitigate their loss:

“A claimant who finds himself out of work should employ a reasonable amount of time each week day in seeking work. It is not enough to inform agencies that you are available for work and normally to post an application to various companies seeking work… The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

CONCLUSIONS

The Complainant seeks compensation for lost earnings, which will be defined and challenged by the Respondent. The Complainant in his second set of submissions has referred to legal issues that are not within the scope or remit of the Workplace Relations Commission and, further, he has explained the scope of what he is seeking by requesting extra matters and extra complaints again named individuals. The Complainant is labouring under a false impression that he lodged multiple grievances which were all ignored, when in fact he wrote one email complaining to Ms Moloney about her interpersonal skills on one occasion; and he wrote one “resignation”-type letter to HR which he was fully facilitated in “revoking” before he simply decided to invoke his retirement age as per the terms and conditions of the employment agreement. The Complainant was dissatisfied with everyone whom he dealt with regarding his retirement and the end of his career, so much so that it is respectfully submitted that, while regrettable, it is open to the Adjudication Officer to interpret the general disappointment or frustration of the Complainant as being in reference to the fact he was reaching retirement rather than as attributable to any person or persons and any treatment in the workplace. Sadly, since the retirement date the interactions with Respondent employees have shown that the frustration has turned to sheer disdain, for anyone who is in contact with him (which they are not under any obligation to do) or fails to meet his needs in terms of communication with the Respondent.

The Complainant’s complaint surrounding a voluntary termination of his contract of employment and the broad and unparticularised allegations of bullying in the workplace should both be dismissed in their entirety. He has failed to make out any valid complaint as against the Respondent.

The Complainant took early retirement of his own volition; this is what “rings true” in all of his direct statements about the fact and machinations of leaving the job in both of the sets of submissions that he has provided. He did not make any formal complaint of bullying while in employment and did not raise a formal grievance, despite being in possession of the relevant procedures and despite being advised by his trade union. He should not be allowed to raise allegations of bullying at this late stage and tie it to a regretted retirement decision. Invoking the policies only when a complaint is made to an Adjudication Officer and seeking to rely on them in that manner is not acceptable and should not be acceded to.

The Complainant’s concerns were raised to HR while in employment and were largely concerning terms and conditions of his employment (e.g. day to day duties; and acting supervisors being deployed to 2 counties including his) when they were not dealt with to his satisfaction he accused HR of being the problem, yet he decided not to take his complaint further or make it formally, either through his union or on his own via a formal grievance or complaint.

The Supreme Court’s definition of what constitutes bullying has not been met by the Complainant in this case; and in any event, but without prejudice to foregoing, the Complainant cannot be compensated at this forum for alleged bullying.

While still in employment, he revoked his decision to retire because he was not happy with how things were going; he stated he was dealing with SIPTU, taking the advices of his doctor, and he was “hoping I don’t have to go down the road of solicitors as that is not me” (30/4/22). This decision was accepted by the Respondent; and the Complainant had the scope to do whatever he chose including continuing in his role; nonetheless, he chose to go ahead with retirement and simply changed the date of retirement date to July from April of that year. Complainant’s main concern about the particular retirement date, from his line manager’s knowledge, was always that he built up enough days in order to cover his annual leave for the year 2022 (to that retirement date) – the Complainant requested 13 days of annual leave but did not have that entitlement built up; however, his line supervisor granted an additional 6 days to him that he had not accrued in order to facilitate the leave he had requested (by the end of his service in 2022, i.e. on 15th July 2022, the Complainant had taken 20 days annual leaving during that half year period). The Respondent is not required to go behind a person’s decision to retire or to terminate their contract of employment in whatever way they deem fit, by persuading them to stay. If a decision to resign is made in a heated manner or in a rash way, the employer should allow for a “cooling off” period and accept any revocation of a resignation-in this instance, that is what effectively occurred when the Complainant put his retirement on hold by email to HR on 30 March 2022. The Complainant expressed personal dislike of the situation and referred to industrial relations advices, medical consultation, and alluded to getting legal advice.

A Respondent at that point is not required to “look behind” the next decision taken by an employee; in this instance, the Complainant decided to go ahead with the retirement. It is clear to see that he had the support of Human Resources at that time and at all times was being asked to remain in contact with them – he had had 2 telephone calls with HR (Ailish Ryan) and a fulsome email (4th March 2022) in reply to his resignation (retirement letter of 22/2/22), covering many queries, and was freely texting with HR when he revoked his decision (30/3/22). In the Complainant’s own submissions, he covers this time period by providing a letter from his GP (letter dated 19 October 2023, but not provided to the WRC until the end of December. The Complainant’s GP refers to January 2022 and says he “seems to have made a rash decision then to take early retirement”. The GP also states he “seems to have remained on sick certs until May 2022” suggesting that the Complainant was not presenting for GP review at that period though it is not clear; however, the notes at the time, he recounts, state that the Complainant “may make a request for early retirement to be put on hold until he is more capable of making decisions”. This is exactly what the Complainant did on 30th March 2022. The Respondent effectively allowed the Complainant the space to “undo” that “rash decision” (though this wording was not used at the time of course, as it is the GP’s wording) but the Complainant decided to go ahead with the retirement anyway.

There is no suggestion now, nor was there at the time, that the Complainant was unable or incapable of making such a decision. Even if the Complainant had capability or capacity issues, the Respondent was not put on notice of these and, in any event, is not obliged to question a person’s decision to terminate their employment.

The Complainant’s focus and, objectively speaking, main interest was also on the failed application he made to a competition for a role which was based in Athlone (instead of Sligo/Leitrim). In his response to Ailish Ryan’s thoughtful response (email) of 4th March 2022 (exhibited by the Complainant), his first line was:

“I would like to see the reason I did not make the short list for the Athlone position”.

The Complainant’s focus continued to be on this throughout his dealings with all in HR i.e. from Ailish Ryan, to Nicola Mulhern, to John Sheridan who has offered to continue discussions with him even after he ceased to be an employee of the Respondent. At each stage of his dealings, he has found fault, sometimes grave and extreme fault, with each of these people and continues to be highly critical of these people who are simply employees of the Respondent. He has failed to accept that the feedback he was seeking – long after the competition for the role was over – would take place verbally as per the policy of the Respondent. The Complainant continues to erroneously link his failure to gain an interview for an internal role with the Respondent (some 9 months prior to his retirement) with ill-treatment in the workplace and his decision to retire when, in fact, the Complainant sought the Athlone role because it was more convenient to his place of residence. The Complainant was disgruntled with the Respondent’s offers of feedback and instead of taking up any one of those many offers, he sadly considers them to be a grave offence against him.

The Complainant’s beliefs and assumptions are always to the forefront of his written submissions. Unfortunately, it is clear that the Complainant has not stopped at any point, and certainly not since his retirement, to assess whether he had effectively communicated these beliefs and thoughts to the employer. No employer can know what is in an employee’s mind unless these thoughts are brought forward in a cogent manner, in this situation the outcome or his views, or indeed his decisions, where not reasonably foreseeable to the Respondent. The Complainant refers repeatedly to his mental health in his submissions and again, suggests that his colleagues were all aware of him having difficulties – this is not the case and is very misleading for the case; the Complainant’s medical history and assessment by the Respondent is confidential to his medical file. The only available information that his line manager had was whether he was either fit or unfit for work. It is his own GP certificates that trigger an occupational health view and nothing personal is shared with the department thereafter. Similarly, when HR receive any correspondence from the C.M.O. it is general in nature and does not contain details in relation to mental health or illness.

The Complainant’s views are completely subjective in nature and are not supported or corroborated by any formal complaint or grievance. He failed to utilise his first avenue of complaint, internally by written grievance per the Company policies before belatedly applying to the Workplace Relations Commission for adjudication.

The Complainant has been in receipt of his pension benefits since the commencement of his retirement, including lump sum payment, which he has failed to include in his complaint or submissions to the Commission.

Without prejudice to any of the foregoing, it should also be noted that the Complainant has failed or refused to mitigate his losses in any way, it is apparent from his submissions including taking out employment with any other bus company or alternatively in a different industry. The Complainant has alluded to his “mental state” preventing him from even looking for work, which is demonstrably false and in addition to no evidence of his mental ill health post May 2022 is referred to in his medical letter.

An employee may claim unfair dismissal where they have resigned from their employment but argue that this was because they could no longer endure their treatment at work. Section 1 (1) (b) of the Unfair Dismissals Act 1977 provides that dismissal means, inter alia:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination as or as 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”

Thus, two alternative tests are provided for proving a constructive dismissal – that the employee was entitled to resign or that it was reasonable for the employee to resign. In both situations it is up to the claimant to prove that a dismissal did actually take place as a preliminary point before the fairness of the purported dismissal can be considered. In this case, it is open to consider whether a contractual retirement was effected in regrettable or disgruntled circumstances.

In cases alleging statutory constructive dismissal the employee goes into evidence first as he or she bears the burden of proof as to dismissal. He or she must persuade the Workplace Relations Commission that resignation was not voluntary.

Constructive dismissal is defined in s.1 of the 1977 Act as:

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.

In Redmond on Dismissal Law (Third Edition – Bloomsbury Publishing plc) at para [19.14]–Desmond Ryan BL states:

There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so to an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance. The duty is an imperative almost always in in employee resignations. Where Grievance Procedures exist, they should be followed.

In the much-cited legal case of Conway v Ulster Bank Ltd UD474/1981 where the Employment Appeals Tribunal considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’. Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning.

In the instant complaint the complainant has, in the opinion of the respondent, failed to utilise the procedures which he was well aware of.

There are a number of points I would highlight from the submissions presented by both parties:

Employment Contract – the contract issued to and accepted by the complainant reads as follows in relation to Pension:

Normal retirement age shall be any time after attaining the age of 60 years but not later than upon attaining the age of 66 years. Your contract of employment will expire no later than age 66 (unless it has terminated at an earlier date) without the requirement of any further notice being issued to you.

I note that the letter issued by the complainant’s GP ON 19/10/2023 refers to early retirement. This is not early retirement, it is retirement in accordance with the rules of the pension plan to which the complainant was a member.

Paragraph 23 of the respondent’s submission reads:

In contrast with the Complainant’s entire submissions, the Respondent will call evidence that the Complainant first raised the idea of retiring to his line manager in June 2021, which is prior to his sick – certification for the period commencing on or about 16th September 2021 (which ran to early 2022). This flies in the face of his entire written submissions and his medical letter, which suggests he made a “rash decision” in January 2022 to retire. In fact, the Complainant raised it, in a jovial manner on 1st June 2021 stating something along the lines of “I’m thinking of retiring next year”. Conscious of her role in succession and forward planning, his line manager responded along the lines of “when you do decide, let me know your dates and what your intentions are”.

This would suggest that the complainant had given a fair degree of thought to the idea of retiring prior to his making any complaint regarding bullying.

Did the complainant apply for the position in Athlone to remove himself from what he felt was a hostile situation in Sligo or was the reason for applying for the position in Athlone down to it being closer to his home address as suggested by the respondent.

There is much that can be commented on in this complaint however I find that there is no escape from what the respondent states in the Legal section of their submission:

There has been no breach of contract on the part of the Respondent. Cases of constructive dismissal, it is accepted, require a high level of proof to justify involuntary resignation from employment. Even where the Commission come to the opinion that a respondent’s handling of a situation fell far short of best practices between employer and employee, it does not automatically follow that the onus of establishing a dismissal has been discharged by the complainant. Failure to invoke grievance procedures can give rise to failures in constructive dismissal claims.

In addition, the Respondent did provide the Complainant with a copy of any grievance and disciplinary procedures, which it is submitted he ought to have used. Such a procedure should be provided at the commencement of employment pursuant to clause 3.3 of the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (S.I. 146 of 2000). The equivalent was provided to him when he started in 1997 and 1998. In addition, it was updated when he started working in the depot in Sligo. Finally, it was provided for when he commenced as Service Supervisor in 2018. In addition, the Complainant was someone who himself dealt with disciplinary issues on a regular basis, albeit within the school transport and student arena; nonetheless, he was conversant in the terminology and was versed in the existence of policies including grievance procedures.

In his own words, per the submissions, he refers to policies of the Respondent. Furthermore, on 4th March 2022 in an email to Ailish Ryan (HR) he stated he was reading the Dignity and Respect in the Workplace document, but he failed to involve this policy or rely on it at any time prior to his cessation of work or in the months thereafter when he was communicating with the Respondent’s staff.

The Complainant referenced his dignity and respect but failed to categorically outline where it was being affected and thus, they were not allowed a chance to remedy it. No formal complaint was raised, and no actual investigation was sought. Where he sought informal assistance, he was dissatisfied with it but did not take the matter further in any coherent way. Objectively viewed, in the circumstances of his emails and texts (which largely focus on not getting feedback the way he wanted it), the Respondent responded adequately in all the circumstances and continued to try to support him.

In coming to a conclusion in this complaint, I am unable to overlook the case law on constructive dismissal and must now find that the complaint is not well founded.

In coming to a conclusion in this complaint I am unable to overlook the case law on constructive dismissal and must now find that the complaint is not well founded.

Constructive dismissal