This week we look at the recent case of McNutt v Enercon Windfarm Services Ireland Limited, ADJ-00028021. The case involved consideration by the Workplace Relations Commission (WRC) of an employer's refusal to permit the employee representation by a trade union official during internal grievance and disciplinary processes. Our Adrian Twomey highlights the key points to note in the decision.
The Complainant, Paul McNutt, was a Field Service Technician who commenced employment with Enercon Windfarm Services Ireland Limited on 25 November 2013. He was paid an average of €645.70 per week.
Mr. McNutt informed the WRC that he had been targeted by his employer for a number of years because of his perceived trade union activities. He made a complaint of bullying against his manager on 31 July 2018. In August of that year, he was informed that he was required to attend a disciplinary process to be run by that same manager.
The WRC decision is not entirely clear as to the exact sequencing of events, but it appears that the bullying complaint was the subject of an investigation that commenced in September 2018 and disciplinary issues were addressed in February 2019. The allegation against the employee was that he had fraudulently recorded incorrect working hours during a training week. He contended that all employees had, in accordance with normal practice at the company, logged a full day of work for a day on which the training had finished early.
The Complainant was eventually issued with a final written warning in May 2019 arising from the disciplinary process. It appears that his complaint of bullying was not upheld. He later appealed the outcome of the disciplinary process. Significantly, it seems that the employee was refused permission to avail of representation by a trade union official throughout these processes.
The Complainant had an accident at work in June 2019 and was out of sick leave for some months. He later submitted a grievance in relation to the manner in which his employer dealt with his sick pay entitlement during his absence.
The Complainant resigned from his employment on 8 November 2019. The company urged him to reconsider his resignation and to raise a grievance in relation to any concerns that he might have had. However, he stood over his resignation and submitted a constructive dismissal complaint to the WRC under the Unfair Dismissals Act 1977 (as amended) on 5 May 2020.
The Complainant's case was heard on 29 April 2022 and a decision was issued on 30 September 2022. The Adjudication Officer appears to have been particularly troubled by the Respondent company's refusal to permit the Complainant to avail of trade union representation during the internal investigation and disciplinary processes. The Adjudication Officer noted that:
there is an implied term in contracts of employment requiring employers and employees to act in a manner that maintains a relationship of trust and confidence between them;
an employee is entitled to terminate the employment contract if the employer is guilty of a significant or repudiatory breach;
the Code of Practice on Grievance and Disciplinary Procedures provides that an employees should be permitted representation by a trade union representative during internal grievance and disciplinary processes; and
the employer's "refusal to allow representation by the Complainant’s trade union representative constituted an ongoing and persistent procedural flaw on the part of the Respondent".
The Adjudication Officer concluded by finding that:
"In the present case, the Complainant stated in evidence that he believed that the Respondent had targeted him due to his alleged trade union activities. Whilst I note that the Respondent strenuously denied this allegation, the Respondent['s] repeated refusal to allow for an appropriate right of representation and to deviate from their procedures served to exacerbate the Complainant’s concerns in this regard and led to the ongoing deterioration of the relationship of trust and confidence between employer and employee."
The Adjudication Officer found, on that basis, that the Complainant had been constructively dismissed. He awarded compensation in the amount of €7,000 in circumstances where the employee had found alternative employment shortly after his dismissal.
As with almost any case, it is possible to argue that the Adjudication Officer got the decision right or wrong. However, the key point for employers to note is that it is extremely dangerous to refuse to permit an employee to avail of representation by a trade union official during internal grievance and disciplinary processes. Those who require advice in relation to the conduct of such internal grievance and disciplinary processes or who need representation before the WRC can contact our Adrian Twomey.