Case Number: ADJ-00014004. Workplace Relations Commission

• Date: 21 March 2019
• Docket Number: ADJ-00014004
• Court: Workplace Relations Commission
• Parties: A Yard Man V A Company

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant is a non-national and worked for the Respondent from 1st December 2015 to 9th January 2018 as a Yard Man and Stock Controller. He claims that he has been constructively dismissed.

Summary of Complainant’s Case:

The Complainant was subjected to bullying and harassment, verbal abuse, intimidation and threats of violence over the course of his employment. He raised his treatment with his manager on several occasions but his manager did not believe this was worthy of investigation. He was told “you are an f… foreigner, go back to your country”, when reported to his manager, the manager said “Oh don’t mind them they are only joking”. There was ongoing difficulties with staff parking in the customer car park which the Complainant was responsible for and he was told by staff “don’t tell me what to do you f…… foreigner, I’ll can park where I want”. His requests to staff to park in the staff car park were constantly ignored and he was berated by staff. When doing a load check, a staff member acted aggressively, shouting at the Complainant and threw an extension lead at him. Staff made fun of his name and a pejorative version of his name was shown on a whiteboard in the office. Although he made several complaints to his manager, nothing was done. The Complainant was very upset and found this a painful environment. This affected the Complainant’s family life and he suffered from stress and depression. The final event occurred on 4th December 2017. He was threatened by a colleague that he would “smash his face”. He asked his manager to record this in writing and was questioned why. The manager was reluctant to do so, and only did so on the basis that the Complainant agreed not to pursue a formal complaint. As there was no other way to record this, the Complainant agreed and signed the note. The note was marked the employee “does not want to make official just to make a statement”. The Complainant was upset and spent the next few days in work in a confused and depressed state. In the aftermath of the 4th December 2017 incident the Complainant used a company fuel card to purchase petrol for his own car, fully intending to refund the cost when his wages were paid. He then went out on sick-leave. He was on sick-leave from 15th December 2017 to 9th January 2018 when he sent a text to his manager stating he did not want to work for the company anymore. The company wrote back the same day accepting his resignation with immediate effect. Subsequently on 14th February 2018, the Complainant wrote back to the company in response to their letter of 9th January 2018 stating that he has been experiencing difficulties with bullying and harassment at work over the last 2 years and has been suffering significant stress and anxiety. He wrote the text message while very stressed and due to the fact that he no longer wished to continue working under the conditions created due to the harassment and bullying he suffered. He has lost all confidence in the company and its procedures in dealing with his complaints of bullying and harassment. The Complainant relies on the ruling in Brady v Newman [UD330/1979]: “…an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him so also must the employer behave”. The Complainant says the failure of the Respondent to conduct any investigations has failed to preserve his reasonable trust and confidence. He continued to complain to his manager in accordance with the Respondent’s grievance procedures over 2 years sadly to no avail. It is submitted that the Respondent has a duty of care to look after the health and safety of employees in the workplace and this includes prevention of bullying (including the investigation of same). This is implied by statute and goes to the root of the contract of employment. The failure to investigate the bullying conduct amounted to undermining the relationship of trust and confidence between the Complainant and Respondent. The Complainant’s written English is very poor. In addition, the Complainant relies on Joyce v Brothers of Charity Services which said that where an employer conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, if so the employee is justified in leaving. The Complainant also relies on the decision in Berber v Dunnes Stores Ltd, and that the prevention of bullying includes the prompt and timely investigation of the complaints of bullying together with clear and concise reporting together with conclusions and if necessary recommendations. The Complainant seeks compensation for his financial loss. He was not paid while on sick-leave.

Summary of Respondent’s Case:

The Complainant commenced employment on 9th December 2015 and was employed as a stock controller/yard man. He signed his contract of employment on 17th December 2015. This refers to the company disciplinary and grievance procedures being available on the company intranet and copies available from HR. The Complainant resigned on 9th January 2018 in the context of disciplinary proceedings. There was no formal complaint made by the Complainant prior to resignation, and there was no reference in his resignation to any complaint. Following an investigation into alleged misuse of a fuel card, the Complainant was invited to attend a disciplinary hearing. He went on sick-leave and subsequently resigned. The Complainant commenced another role 2 days after his resignation. The first reference to alleged bullying and harassment at work was made by the Complainant after his resignation had been accepted. However no details were ever furnished to the Respondent despite the Complainant being afforded the opportunity to do so. The Respondent makes a preliminary application to dismiss the case as it is frivolous and vexatious under S42 of the...