Winthrop Engineering and Contracting Ltd (Represented Edward Walsh B.L., Instructed by HBMO Solicitors) v Mr Kieran Donagher (Represented by HRS Consultants)
| Jurisdiction | Ireland |
| Judgment Date | 25 January 2021 |
| Judgment citation (vLex) | [2021] 1 JIEC 2502 |
| Docket Number | FULL RECOMMENDATION ADJ-00012876 CA-00016978-001 DETERMINATION NO.UDD218 |
| Court | Labour Court (Ireland) |
FULL RECOMMENDATION
UD/19/204
ADJ-00012876 CA-00016978-001
DETERMINATION NO.UDD218
Labour Court
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Ms Treacy
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
1. Appeal of Adjudication Officer Decision No: ADJ-00012876 CA-00016978-001.
2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 9 October, 2019 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 15 December, 2020. The following is the Determination of the Court:-
This is an appeal by Mr Kieran Donagher (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00012876, dated 2 September 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer decided that the Complainant's complaint of constructive unfair dismissal, referred to the Workplace Relations Commission on 23 January 2018, was not well-founded.
The Complainant's Notice of Appeal was received by the Court on 9 October 2019. The Court heard the appeal in Dublin on 15 December 2020 during which it received sworn evidence from the Complainant and from Mr Ciaran Morgan, HR Director with Winthrop Engineering and Contracting Limited (‘the Respondent’).
The Complainant was employed by the Respondent as an electrical supervisor. He commenced this employment on 1 November 2016 and resigned on 4 January 2018 citing his dissatisfaction with the manner in which the Respondent had dealt with allegations of bullying and harassment raised by the Complainant (originally in July 2017 and again in November 2017) against his line manager, Mr A.
For the duration of his employment with the Respondent, the Complainant was assigned to a large infrastructural project in Amsterdam which consisted of the conversion of a number of warehouses into data centres including all construction works and electrical and mechanical fit-out.
The project comprised a number of separate but linked buildings with a number of different handover dates for different phases/stages in each building.
The Complainant's annual salary was €65,000.00. While working abroad on the Respondent's behalf, he received a weekly subsistence payment of €160.00 and accommodation was provided for him by the Respondent. His employer also paid for return flights to Dublin once a fortnight.
It appears the first number of months of the Complainant's employment in Amsterdam were uneventful. He believed the project was progressing well overall and that the Respondent was satisfied with his work. In evidence, he told the Court that Mr A had instructed him to purchase a video camera in order to record the excellent work that was being done on the project.
The resulting video was to be shown to the Respondent's Managing Director, Ms Ann Dooley, and the corporate client on whose behalf the project was being undertaken. However, according to the Complainant, Mr A's attitude towards him began to change from early July 2017 onwards.
He told the Court about an incident that occurred on one occasion when he approached Mr A, in the usual way, to ask him to sign off on his impending flight back to Dublin.
The Complainant says he had witnessed Mr A doing this without issue for other colleagues but when he approached Mr A he says Mr A fobbed him off and said – in sight of other colleagues in an open plan office – he would do it later.
The Complainant told the Court that this experience caused him to become stressed and he worried whether, in fact, he would be able to return home that weekend as planned.
In addition, the Complainant says that the timing of his return flight to Dublin from Amsterdam every second Thursday was also changed to a later time. He believes this change applied only to him initially although he accepts it was subsequently applied to other colleagues.
On Friday 28 July 2017, the Complainant sent an email to Ms Anne Dooley and Mr Ciaran Morgan in which he raised a complaint in relation to Mr A's behaviour towards him. He gave a number of examples of when he believed that Mr A had been aggressive in his dealings with him.
He also stated that he believed he had been treated differently to other colleagues in relation to the timing of his outbound and return flights. He described the manner in which Mr A had spoken to him in front of colleagues as “unacceptable, demeaning and uncalled for”. He also said that he had concluded that Mr A was “trying to get rid of [him]”.
Later that day, Ms Dooley replied to the Complainant's email to assure him that she would ask the HR Director to follow up on his complaint the following Monday and that he would conduct a thorough investigation into it. She also addressed the issue of the changes being implemented in the company at that time to the procedure for booking and approving flights for staff.
On 31 July 2017, Mr Morgan emailed the Complainant asking him to telephone him whenever he was free to do so in order to discuss the issues raised in his email of 28 July 2017.
Mr Morgan followed up with a further email to the Complainant on 1 August 2017 in which also addressed the changes that were being implemented, at that time, to flight booking arrangements. He offered the Complainant the option of flying out of Belfast rather than Dublin.
Mr Morgan advised that he hadn't yet had the opportunity to inform Mr A of the allegations against him but would do so shortly and revert with an update. Mr Morgan also spoke with the complainant on the telephone that day. Later that afternoon, the Complainant again emailed Mr Morgan to complain that Mr A had spoken to him in a condescending manner about his flight times.
He again complained that he was experiencing “stress and grief” as a consequence of Mr A's “bullying tactics”. Mr Morgan engaged with Mr A in relation to the issues raised by the Complainant. Mr A expressed surprise and told Mr Morgan that he thought he had had a good relationship with the Complainant and had had no intention of treating him differently or discriminating against him.
Mr Morgan communicated this to the Complainant in an email on 3 August 2017 in which he also confirmed that the new flight arrangements had been implemented for all staff. He expressed the hope that “at this point that everyone can move forward in a positive manner”.
Finally, he invited the Complainant...
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