EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYER
UD583/2012
against the recommendation of the Rights Commissioner in the case of:
EMPLOYEE
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr F. Moloney
Mr F. Barry
heard this appeal at Dublin on 8th July 2013 and 7th October 2013 and 8th October 2013
Representation:
Appellant: Ms Fiona Higgins, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
Respondent: In person
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of an employer appeal of the Rights Commissioner Recommendations ref: r-112297-ud-11/SR under the Unfair Dismissals Acts 1977 to 2007.
Background:
The appellant contended that the respondent was not dismissed but resigned while on sick leave.
They also are of the view that there was performance management issues with the respondent and
any allegations made by him were fully investigated and not substantiated.
Respondent’s case:
The respondent OA gave evidence of beginning work in 2007, all was well until a change of manager in August 2009 when DM became his team leader. He felt that small issues became large and gave an example of forgetting to include a back-up with postings, it was no big deal but she told him he didn’t know how to do his job, he felt like she didn’t want to see his face. OA told the Tribunal that because of the constant criticism he started to have difficulty sleeping, his blood pressure was up and he became afraid to go to work, it was an intolerable working environment. His work appraisals had been fine until she (DM) took over the team, they then became unsatisfactory. In or around January 2010 he became aware of and error log report being kept.
He was told this by CC. He wrote to Mr M, on 2nd February 2010 outlining his concerns and asking for matters to be dealt with informally and looking for a resolution. He felt that the letter was trivialised, his letter was given to CC to deal with and CC was upset because the letter was sent to his boss. CC told the appellant that there was a personality clash and “to just do what DM asks”.
OA became afraid to go to work, he was under constant threat of dismissal. He went to the occupational health nurse who referred him to his G.P. and in June 2010 (while on sick leave) had his solicitor write to the appellant requesting impartial outside mediation.
A HR generalist replied on behalf of the appellant in July saying that she would try to resolve matters on his return to work. OA agreed to a meeting and sent a list of his grievances as well as his letter of 2nd February to her. An investigatory meeting was held on 8th September. It was chaired by SK (HR generalist). OA said it took three weeks for him to receive a copy of the minutes. He disagreed with some of the contents and had to wait another five or six weeks for the outcome of the investigation.
On 3rd November OA was asked to come into the offices to collect the outcome. He wanted a copy in advance but was brought in and given the findings. He was told he had no case of bullying or harassment against the appellant and was asked for his comments. He told the appellant he couldn’t respond to something he hadn’t read. CC escorted him to reception, he wanted to go to his locker but his workstation had been taken over and his locker gone.
OA went home, read through the findings and e-mailed CC asking to whom he could appeal the decision. He appealed it as per an e-mail of 8th November. The following day he received a letter from MM in HR inviting him to a disciplinary hearing, allegations had been made that he was seen driving a taxi while on sick leave. He responded, advising the appellant that he was on continuing sick leave until November 26th, his blood pressure remained high and he felt that people had been organised to make allegations against him.
An appeal meeting was held on 26th November. He was met at reception and brought to the HR department. The outcome remained unchanged. The disciplinary hearing did not take place as he was on sick leave. He lost all faith in his employer, was referred to occupation health, remained on sick leave and resigned by letter dated 10th February 2011.
Under cross examination OA confirmed that he initially asked for the matter to be dealt with informally. He was having weekly one to ones with his team leader but said “so was everybody else”. He accepted that an error log was sent to him on 6th January 2010. He had been absent from work from June and was unaware that his swipe would be disabled therefore not allowing him access to the building.
He confirmed that he received forms inviting him to take up the appellant’s Permanent Health Insurance Plan but did not avail of the opportunity saying that he was not thinking straight and had no faith in the appellant. He did receive a letter from the appellant asking him to withdraw his resignation and allowing him to apply for long term disability benefit but did not engage.
Appellant’s case:
The appellant’s section manager CC, a senior manager SD, and the respondent’s team leader MD all gave evidence that the section dealt with funds where an error could cost millions of euro. They all concurred that OA’s errors were high and that he needed on-going training. If errors are occurring individuals are performance managed and in January 2010 he was told again that his performance was not improving and that the appellant still needed to maintain their performance management of him. CC received the initial letter of complaint from Mr M and at a meeting with OA explained that what his line manager was doing was performance managing the situation and trying to develop him, not bully or harass him. One-to-ones were done on a weekly basis in order to address his areas of weakness and his lack of understanding of his role.
OA’s team leader MD told the Tribunal that she was surprised and hurt that he had accused her of bullying him. She had been supportive of him, considered him a friend and gave him every opportunity. He got aggressive when questioned and she felt uncomfortable with him so stopped doing one to ones with him on her own.
SK and DK, HR advisors gave evidence of taking OA’s allegations of bulling and harassment very seriously. Neither party were known to the respondent. They met him at an offsite location on 8th September and went through his letters, explained the process and interviewed all persons involved. It was a lengthy process and on 3rd November the respondent was brought through the findings. It was found that the actions of his supervisors did not constitute bullying and harassment. He was given the right of appeal.
CK and POF heard the appeal on 18th November 2010 and the decision was upheld.
MM, HR advisor, gave evidence of receiving details from three separate people in relation OA driving a taxi while on sick leave. She met the three people, took their statements and issued a letter to the respondent on 9th November. He made contact by e-mail asking that the matter be put on hold until he returned from sick leave. Occupational health advised that OA would be unfit for work for some considerable time and it was decided not to proceed with the disciplinary matter.
MM contacted the occupational health doctor and it was agreed that as the respondent had already been on sick leave for over six months, the right thing to do would be move OA to permanent health insurance. MM tried on three separate occasions in December 2010 and January 2011 to schedule meetings with the respondent and sent him the necessary forms by post.
OA tendered his resignation on 8th February 2011 and returned the uncompleted health insurance forms.
Determination:
As this was a case of constructive dismissal the onus was on the claimant to show that due to the unreasonable behaviour of the respondent he had no other option but to resign from his role with the employer. The Tribunal is not satisfied that the claimant advanced any evidence to support his claim under Section 1 Section 1 (b) of the Unfair Dismissal Act of 1977. The Tribunal therefore upsets the decision of the Rights Commissioner and his claim under the Unfair Dismissals Acts, 1977 to 2001 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)