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Respondent pays €30,000.00 for discriminatory constructive dismissal

Facts: In 2016, Mr. A, Contract Manager for the Respondent confirmed the change of title of the Complainant to ‘Site Supervisor’, where he was responsible for setting up weekly rosters. The Complainant stated that he was happy to accept the title change and that any issue that had to be dealt with at a senior level would be passed on to Mr. A.  In September 2017, the Complainant was diagnosed with anxiety and he suffered from panic attacks and was certified unfit to work. He duly notified the Respondent of his condition. In October 2017, the Complainant returned to work. In August 2018, the Complainant had personal issues resulting in him trying to commit suicide and undergoing treatment. The Complainant was certified unfit to work and commenced a six week period of sick leave. After he returned to work from this leave, there were issues with the rosters prepared by the Complainant, where Mr. C, the Security Officer angrily berated him referring to his medical condition. On 25th September 2018, the Complainant raised a grievance with Mr. B, Manager and Mr. D, the Regional Manager. Both Mr. B and Mr. D failed to adequately address the grievance. While Mr. B noted the concerns and generically stated that there was “anger amongst the staff”, Mr. D removed the task of roster management from the Complainant’s role stating that the tension was due to TUPE issue. The Complainant claimed that this entire incident was victimisation. Mr. D failed to address the complaints raised by the Complainant adequately. Subsequently on 26th September 2018, at the Security Officer’s meeting, Mr. B confirmed that the function of preparing and issuing rosters was passed over to the Head Office. In this meeting, Mr. C acted aggressively and disrespectfully towards the Complainant in front of Mr. B, who did nothing. This incident had a devastating effect on the Complainant’s health, as a result of which, on 2nd October 2018, the Complainant suffered from chest pain and dizziness. When the Complainant emailed Mr B and Mr. D raising another grievance, neither Mr. B nor Mr. D took any adequate action. On 5th October 2018, the Complainant resigned from his employment by an email.

The Complainant claimed that he was subjected to harassment and discrimination on the grounds of disability and further claims that the Respondent failed to reasonably accommodate the Complainant. The Respondent refuted all claims of the Complainant.

Findings: The Adjudicating Officer (“AO”), Ms. Enda Murphy, analysed the different aspects of the complaint in detail and was of the following view:

  1. With respect to the discrimination on disability ground, the AO found that the Complainant could not establish a basis for his claim.
  2. With respect to Respondent not providing reasonable accommodation, the AO referred to Nano Nagle School v Daly [2019] IESC 63 and was of the view that the Respondent was aware of the Complainant’s conditions and failed to engage in any meaningful consultation with the Complainant. The AO found that the Respondent had discriminated against the Complainant in respect of a failure to provide him with reasonable accommodation for his disability.
  3. With respect to the harassment claim of the Complainant, the AO was of the opinion that the Respondent had appropriate policies in place and that the policies were made available to the employees. However, the formal grievance filed by the Complainant was not effectively addressed by the Respondent. The AO found that the Respondent also failed to take appropriate remedial action to ensure that the Complainant would not be exposed to further harassment in the workplace after he had specifically complained about harassment.
  4. In the matter concerning constructive dismissal, the AO referred to An Employer v A Worker (Mr. O No. 2)[3] and was of the opinion that the conduct of the Respondent was unreasonable considering the emotional and psychological vulnerability of the Complainant. The AO found that the Complainant was discriminatorily constructively dismissed by the Respondent.

The AO awarded the Complainant €30,000.00 being the equivalent to approx. 9 months gross pay for the distress suffered by him. The AO also ordered that all staff within the Respondent’s company must receive appropriate training in its bullying and harassment policy.

Note to Employers: This decision illustrates that the employers need to be extra vigilant in respect of vulnerable employees, especially when such employee raises a grievance. The Employer should at all times maintain transparency in the procedure and communicate effectively on all steps it has taken to address any grievance put forth by the employee. The decision also highlights the importance of training staff regularly on the policies that are in place.

9th October 2019

https://www.workplacerelations.ie/en/cases/2019/october/adj-00018217.html

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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