Complainant

Respondent

Parties

David  Kavanagh

South Dublin County Council trading as Sdcc

Representatives

Michelle Bolger of

 Bolger & Co Solicitors

 Amanda Kane of the LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00064335-001

25/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064335-003

25/06/2024

The Complainant worked for the Respondent local authority as a driver from the 6th of February 2020 until the 27th of June 2024.

The Complainant alleges that he was constructively dismissed following persistent bullying and threatening behavior and that he was unable to attend the workplace from the 6th of February 2024.

The Respondent submits that the Complainant did not provide them with an opportunity to resolve his concerns via the established grievance and dignity at work policies before resigning.

The Complainant’s solicitor made oral and written submissions on his behalf. The Complainant was persistently raising both bullying and threats of violence but the Respondent failed to act and this forced his resignation.

The Complainant gave evidence under oath. Most of his direct evidence was not challenged by the Respondent and as such I have mostly referred to his evidence in the findings and conclusions section.   

The Respondent’s representative made oral and written submissions on their behalf. They sought to resolve the Complainant’s grievances informally and when the matters were escalated to an investigation he resigned.

Mr Leo McGee, Senior Engineer, gave evidence under affirmation.

He was aware of the efforts made by the District Supervisor over the Complainant’s area to deal with the issue. The Complainant had raised a series of complaints but his colleagues had also put in counter complaints. They tried to resolve this by engagement.

The Complainant was employed as a driver and worked alongside general operatives who he assisted when he was not driving. He had no role in supervising the crew and he was not a chargehand (also referred to as “gangerman”) which is the senior member of a crew overseeing their work. Above chargehands there were assistant foremen who reported into a Foreman who reported into the District Supervisor. 

The Complainant outlined a number of incidents in evidence over the two years before he resigned which he says resulted in his constructive dismissal. While a number of these incidents are extremely serious, some matters the Complainant raised would appear to be normal and reasonable actions taken by management. For completeness I have summarised these below.

The District Supervisor would sometimes tour the crews and check in on what they were doing. On the 22nd of June 2022 the District Supervisor turned up at the roadside where the Complainant’s crew were working and began questioning the crew’s productivity and progress. The Complainant’s evidence was that he was holding him responsible for their lack of progress even though he was not a chargehand. The District Supervisor referenced the fact that the Complainant had been looking for promotion and suggested he would not support him unless productivity improved. The Complainant felt this was unfair and was akin to disciplinary action. He pointed out that the issue was related to the work of the whole crew. When the District Supervisor told him that he would speak to each of them the Complainant told him that they should be spoken to together or in a closed-door individual meetings with SIPTU present. He accused the District Supervisor of bullying and the District Supervisor left the site and the Complainant called his Union but they did not engage with him.

 I only have the Complainant’s evidence on this incident but even relying on that I do not see how this incident could be described as bullying. Normal negative feedback about work is not bullying nor is encouraging an employee to take on more responsibility in exchange for supporting their promotional ambitions. Managers do not have to arrange a formal meeting with Union representation to give negative feedback.

In July 2023 the Complainant sought Army leave as a member of the reserves. He was granted his leave in 2021 and 2022. On this occasion it was denied and the Complainant had to take the time as annual leave. The Respondent’s position was that arose from the length of time he was taking off and was not provided for in the circular. The Complainant was also rejected for term time in October 2023 and he believes that both these leave denials were the District Supervisor targeting him. However, Mr McGee outlined in evidence that the term time requests were often rejected as it involved significant time off and they needed drivers.  I see no reason to conclude that there was anything punitive or targeting in these leave requests being refused.

Aside from these two incidents the Complainant’s other evidence related to more serious matters.

In September 2022 the Complainant was attached to a crew and was on the way to where they were working. He got a call from the chargehand on his personal phone who accused him of being late and asked him “where the f-ing hell are you.” At that time there was a dispute between the Complainant’s Union and the Respondent related to start and finish times as well as clocking in. When he arrived to the site he didn’t engage with the chargehand who could be quite aggressive.

Later in the canteen the Complainant went to the chargehand and told him not to ever talk to him like that on his personal phone. The Complainant’s unchallenged evidence was that the chargehand threatened to box the head off him. 

The Complainant raised this with management by email, he also went to the Foreman and District Supervisor who convened an informal meeting with his SIPTU Rep. They asked him to let them resolve the matter. The Complainant believed he wasn’t safe at work and was certified as unfit to work due to stress. When he returned there was no further follow up.

In March 2023 the Complainant received verbal abuse from three other workers in his depot. He emailed the District Supervisor looking to be transferred. He didn’t respond and the Complainant’s evidence was that this verbal abuse continued into April and was escalating. Certain people were trying to goad him into fights. The Complainant again raised it by email and at this point the Foreman met with him and asked him to again let him try to resolve it informally.

In late August 2023 the Complainant wrote to the District Supervisor by email and again asked for a transfer. He indicated that he was now subject to regular verbal abuse and threats of violence. The District Supervisor met with each of the four employees the Complainant had referred to and then referred back to HR and the Complainant. It is not clear whether the Complainant was referred to the formal complaints procedure at this point.

After engaging with the other employees the District Supervisor met with the Complainant and two more senior members of management, including the head of service. This was something that the Complainant later criticised him for as a breach of privacy. In this meeting in October the Complainant was asked about his complaint in some detail which was distressing for him and he became upset during the course of the meeting.

When the District Supervisor had met with the four other employees they had been given a copy of the Complainant’s email complaint. The Complainant’s evidence was that this resulted in the email being disseminated and in him being mocked further. The Complainant also believes that people in management who attended the follow up meeting with him revealed to others that he got upset in thar meeting as he was later mocked by an employee making crying gestures and playing the song “Dry your eyes” from their car.   

The Complainant emailed the District Supervisor about this shortly afterwards and then sought to meeting with HR. This was in late October and they did not reply until the 1st of December and only replied with a one-line email attaching the grievance policy and encouraging the Complainant to resolve matters locally.

On the 31st of January 2024 the Complainant was playing pool in the maintenance shed by their assigned depot. The chargehand he had previously had issues with was preparing to take a shot and at the same time the Complainant chalked his cue. The Complainant’s evidence was that the Chargehand threatened to smash the pool cue over his head. The Complainant does not believe he was joking and his evidence was that the chargehand was very angry.

The Complainant sought to raise this with HR who again replied attaching the grievance and dignity at work policies and outlined that he was required to raise the matter informally with the District Supervisor. This was set out in a two-line email which the Complainant replied to and outlined the previous issues he felt he had with informal engagement. It appears that his email was ignored.

The Complainant’s evidence was that the Foreman then told him that the pool room was withdrawn. He immediately went on sick leave and suspected he would be blamed for this by his colleagues.

A month later, on the 8th of March, the Complainant first tried to resign.

Mr McGarry’s evidence was that up until this point the District Supervisor had attempted to resolve matters directly. He outlined that there were complaints made against the Complainant by his colleagues also. I also note from previous interactions (i.e. on the 22nd of June 2022) the District Supervisor may have had a view about the Complainant mischaracterising certain interactions as bullying. I acknowledge that management overseeing operations generally tend towards informal resolution where possible. However, this is not always appropriate, particularly where there are alleged threats of violence.

Whereas the actions of line management might be understandable, even if they were not the best course of action, it is quite shocking that their HR Department of a large state agency reacted the way they did from October 2023 until March 2024. When repeatedly notified of allegations of persistently bullying and threats of violence, HR limited their role to that of a post box and replied belatedly with copies of their policies and one-line emails discouraging the Complainant from utilising the formal procedures provided for in these policies. Local engagement and informal resolution stages do not bar HR from involvement in matters they should obviously follow up on.

If the Complainant had indeed resigned on the 8th of March, on the evidence I have before me, it would be difficult for the Respondent to defend the claim on the basis that he had not exhausted internal procedures. At that time he had been trying to raise serious issues and was being ignored and redirected back to informal channels which had failed.  

However, as it happens the Complainant was successfully discouraged from resigning and agreed to hold off for at least two weeks to allow the Respondent to follow up with him on his complaints. HR began to engage with him and encouraged him to submit a grievance so it could be appropriately investigated. The Complainant did put in a grievance which he later agreed would be considered under the Dignity at Work Procedure and referred to an independent investigator. The Complainant also stopped putting in sick certificates and outlined that he would not attend his assigned depot as he feared for his safety, not due to illness. His salary was stopped as he was absent without leave. The Complainant was referred for an Occupational Health Assessment but refused to engage with this on the basis that he was not on sick leave.

After a month, the Respondent agreed to temporarily assign the Complainant to a different depot while the investigation was ongoing. The Complainant refused to attend this other depot and stated he would only return to work on the basis of a role as a Transport Manager or Mobile Library driver.  HR responded and outlined that there was no role of Transport Manager but drew his attention to the currently open competition for Mobile Library Driver and invited him to apply for this. The Complainant does not appear to have availed of this option. He replied to HR requesting to avail of the Cost- Neutral Early Retirement scheme. In the same email he is clear that he believes he is being constructively dismissed and will be bringing a claim under this act.

HR replied on the 16th of May with the required forms but in their letter they stressed that the Complainant could return to work in another depot and that his complaint was going to be investigated. He was asked whether he would engage with the investigator.

The Complainant replied putting in the Cost Neutral Early Retirement forms. He asked for further clarity on the investigation which the Respondent provided. The Complainant did not reply to this email and at this point did not want to engage. The Respondent did not proceed with the investigation of his complaint after he resigned.

The Complainant’s employment ended on the 27th of June 2024.

The Law

The Unfair Dismissals Act provides that a dismissal can occur where an employee resigns.

This is outlined in section 1 of the act which defines dismissal as to include:

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,

The above has been interpreted as putting the burden on the employee to establish not only was their decision to resign reasonable but that it was due to the unreasonable conduct of the employer.

Or as the UK Court of Appeal put it in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221:

“is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving. He can go, with or without giving notice, and claim compensation for unfair dismissal”

The Respondent has referred to a well-known line of cases (Beatty v Bayside Supermarkets UD142/1987, Conway v Ulster Bank Limited 475/1981, Travers v MBNA Ltd., UD 720/20) which provide that for an employee to succeed in a constructive dismissal claim on this “reasonableness” test they must have tried and exhausted any potential internal remedies. They must engage with any reasonable attempts made by the employer to resolve the issues which are driving them to resign.

The Complainant is not the only employee who enjoys the protection of this act. The Respondent must investigate any claim of serious misconduct related to any employee thoroughly and in line with the accused employees’ rights to fair procedure. They cannot act solely on the basis of the complaint. While internal investigations can be lengthy and stressful, resigning without engaging with them will normally be fatal for a claim for constructive dismissal, otherwise employers would be put in the position of having claims succeed against them in relation to one employee for having followed the law in relation to another.

Conclusion

While Ms Bolger rightly criticised the Respondent for repeatedly referring the Complainant back to the informal and local resolution options, they did change course in March 2024 when the Complainant first looked to resign. The Respondent then sought to investigate the matter and reassigned the Complainant pending the investigation. These options were available to the Complainant when he went absent without leave and then resigned.

In the circumstances the complaint for constructive dismissal does not succeed.

I find that the complaint is not well founded.