The Workplace Relations Commission (WRC) has recently decided the case of Smith v Dublin Airport Authority Services Limited t/a DAA, ADJ-00026316, in which an employee complained that he had been constructively dismissed following alleged bullying and the refusal of his request for an internal transfer. Our Adrian Twomey highlights the key points to note in the decision.
The Complainant, Mr. Smith, was employed at Dublin Airport by the DAA from 1 November 2016 until he resigned in September 2019. In July 2019, an unidentified person apparently downloaded a photograph of Mr. Smith playing golf from facebook. That photograph was then saved as the desktop wallpaper and screen saver on a computer at Dublin Airport that was used solely as a training tool for airport security staff.
Over the following days, Mr. Smith was confronted about the photograph by a number of colleagues, some of whom made comments about his appearance in it. Mr. Smith complained about the matter to the Duty Manager who contacted the I.T. Department. They removed the photograph from the computer but were unable to determine who had put it there.
Management put up signs in common areas warning staff that training computers were to be used only for training purposes and that disciplinary action could be taken against anyone misusing them. It appears, however, that the signs only prompted more people to comment on the photograph and that a number of staff aggressively confronted Mr. Smith, accusing him of trying to get people sacked.
The Complainant then went to the HR Department and asked for a transfer to a different department. The HR Department indicated that they would look into the matter and the Complainant was temporarily reassigned to the VIP screening area. He was questioned by other staff there about the incident. Thereafter, he went to see a doctor who advised him that he was unfit for work. His application for a permanent transfer was not successful.
Mr. Smith went out of work on sick leave within days of the original incident occurring. He never returned to work before he resigned on 18 September 2019. During the intervening period, HR had offered to have any grievance investigated. Mr. Smith, however, declined the option of following the grievance procedure and resigned, claiming that it would have been unsafe for him to return to work.
Having heard Mr. Smith's constructive dismissal case, the Adjudication Officer noted that:
"The failure to provide the complainant with the outcome he had identified as the only one acceptable – a transfer – was not necessarily the end of the road for the complainant. In this regard the extent to which appropriate grievance procedures were available to the complainant, and used to pursue and resolve his issues, is a key question in determining whether or not the respondent behaved unreasonably. From the evidence given it is clear that the respondent had procedures in place to deal with employee grievances and also interpersonal issues such as bullying. The HR Executive, Ms Hackett, ensured that the complainant was aware of these procedures and offered him any assistance he required in order to utilise them.
I believe that the response of the respondent to the issue of the placement of the photograph on the screen was reasonable. Any further action in relation to bullying would have required the complainant to identify the people against whom he had a complaint if he required formal action to be taken. I therefore find that there was no evidence of a breach of contract which could give rise to a justified repudiation and therefore the focus must be on whether or not the conduct of the respondent met the test of being so unreasonable that the complainant had no alternative but to resign.
A grievance procedure existed within the respondent’s organisation and the complainant was aware of this procedure. He did not use this procedure...
The complainant was aware of the grievance procedure and did not use it and did not show that the procedure was unfair. I conclude therefore, that the complainant has failed to show that a dismissal occurred, and he was not unfairly dismissed."
Mr. Smith's claim was dismissed on that basis.
The outcome of the case highlights the importance of employees following and exhausting internal procedures before resigning and suing for constructive dismissal. It also emphasises the importance of employers having such internal procedures. Those who require advice in relation to such matters or who need representation before the WRC can contact our Adrian Twomey.