ATR Restoration Ltd (Represented by Management Support Services (Ireland) Ltd) v Marek Zalewski (Represented by MC Innes Dunne, Solicitors)

 
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Labour Court (Ireland)

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UD/17/57

DETERMINATION NO.UDD1818

ADJ-00000207 CA-00000321-001

PARTIES:
ATR Restoration Limited (Represented by Management Support Services (Ireland) Limited)
and
Marek Zalewski (Represented by MC Innes Dunne, Solicitors)
SUBJECT:
1

1. An appeal of an Adjudication Officer's Decision no: ADJ-00000207.

BACKGROUND:
2

2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 5 May 2017 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. Two Labour Court hearings took place on 21 September 2017 and 18 January 2018. The following is the Determination of the Court:

DETERMINATION:
3

This matter comes before the Court as an appeal by Marek Zalewski (the Appellant) of a decision of an Adjudication Officer in his complaint made under the unfair Dismissals Act, 1977 to 2015 (the Act) against his then employer, ATR Restoration Limited (the Respondent) that he had been constructively dismissed.

4

The Adjudication Officer, in a decision made on 5 th April 2017, decided that the complaint was not well founded and that it failed.

5

The appeal to this Court was received on 5 th May 2017.

6

The fact of dismissal is in dispute.

Background
7

The Appellant was employed by the Respondent from 29 th April 2013 until the date he claims his employment terminated on 10 th June 2015.

8

A number of work related incidents and interactions had taken place between the Appellant and the Respondent up to and including the end of 2014. At a meeting in December 2014 between the Appellant and two Directors of the Respondent the parties discussed the matters which had arisen prior to that date.

9

Further interaction between the parties on 27 th February 2015 resulted in a meeting between the Appellant and the two Directors of the Respondent on 2 nd March 2015.

10

Following that meeting e-mail contacts between the Appellant and the directors of the Respondent ensued. The Appellant supplied a medical certificate on 9 th March 2015 which certified that he was suffering from stress and was unfit for work until 22 nd March 2015. The Appellant attended his own doctor on 23 rd March 2015 and supplied a medical certificate covering the period to 29 th March 2015.

11

The Appellant attended the Respondent's doctor at the request of the Respondent on 25 th March 2015. That doctor compiled a report for the Respondents as a result. That report certified to the Respondent that the Appellant was suffering an acute crisis in relation to perceived work-place stress and was unfit for work and likely to continue to be so for as little as one month and as much as six months.

12

The Respondent's Doctor, in that report, stated that it would be important to address the perceived stressors at work before he returned to work and the doctor suggested a process of external mediation.

13

On 10 th April 2015 the Appellant's legal representative wrote to the Respondent stating that the treatment which the Appellant had received from the two Directors of the Respondent since 2013 had caused his absence from work as a result of stress and anxiety. The Appellant's representative, in that letter, invoked the Respondent's Bullying and Harassment policy on behalf of the Appellant and advised that the Appellant's medical doctor had certified him as medically able to participate in an investigation of his complaint of bullying and harassment against two Directors of the Respondent.

14

The Respondent's Bullying and Harassment policy is clear in its terms. That policy commits the Respondent to take particular actions in response to a complaint of bullying or harassment. In particular, the policy commits the Respondent to initiating an investigation by appropriate management or, if management are the subject of the complaint, by an independent party appointed for the purpose. That policy sets out timelines and procedures which will be followed upon receipt of a complaint.

15

On 20 th April 2015 the Respondent wrote to the Appellant stating that the Respondent would await the Appellant's return to work ‘ at which stage we can meet and discuss any issues you may have in line with your contract of employment.

16

The Appellant's legal advisers responded to that letter on 15 th May 2015 re-iterating the request for the commencement of a process as requested in his previous letter and confirming that the Appellant was fit to participate in such a process.

17

The Appellant had received no response to that letter by 10 th June 2015 and on that date, by letter, notified the Respondent that, because it was clear to him that that the Respondent had ‘ no intention of affording him his contractual entitlement to have his complaint investigated’, he was resigning his employment with the Respondent effective immediately and advising that he regarded himself as constructively dismissed.

18

On 17 th June 2015 the Respondent replied to that letter indicating that no formal statement in writing had been received from the Appellant as regards alleged bullying and harassment and indicating that upon receipt of such a statement a process would be initiated.

Summary Position of the Appellant
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The Appellant submitted that, arising from his contract and the basic requirements of fair procedure, he had an entitlement to have his legitimate and serious complaint of bullying and harassment investigated by the Respondent. He submitted that the Respondent had repeatedly and deliberately failed to comply with its own procedures following requests from him to initiate those procedures. The Appellant submitted that those failures left him in a position whereby it was perfectly reasonable for him to ultimately resign from his employment.

20

The Appellant submitted that he had repeatedly made informal complaints of bullying and harassment and ultimately was unable to continue working as a result of stress. The Appellant referred to the Respondent's own doctor's report which advised that the issues giving rise to perceived stress should be addressed prior to his return to work from the period of sick leave which had commenced in March 2015.

21

The Appellant submitted that the failure of the Respondent to initiate a procedure in line with the Bullying and Harassment policy following the invocation by him of that policy in letters dated 10 th April 2015 and 15 th May 2015 left him with no option but to resign.

Summary position of the Respondent
22

The Respondent submitted that issues with the Appellant's performance started arising in 2014 and that this resulted in one or other of the two directors of the Respondent talking to the...

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