UD415/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                              CASE NO.

Employee -    claimant                                                                                  UD415/2012

against

Employer -    respondent

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:     Mr C. Lucey

                    Mr C. Ryan

heard this claim at Dublin on 7 June 2013 and 1 October 2013 and 2 October 2013

Representation:

Claimant(s) : Mr Donogh McGowan, Gerrard L. McGowan, Solicitors,

         The Square, Balbriggin, Co. Dublin

Respondent(s) : Mr Tiernan Doherty, IBEC,

Confederation House, 84/86 Lower Baggot Street, Dublin 2

Summary of Evidence

The claimant commenced employment with the respondent company in March 2006. She was promoted to supervisor in July 2007 and to assistant manager in September 2008. She had a good relationship with the respondent and employees. Following the birth of her baby she returned to work in March 2010 and was given one weeks’ notice of a transfer to another site. She moved house in order to be located closer to her workplace and looked forward to working at the bigger site. She became aware the supervisor (AG) was unhappy that he had not got the promotion to assistant manager. It seemed he felt threatened by her and set about undermining her authority. He monitored her hours and checked her work including monitoring her on CCTV. He informed her that he was checking the cameras. The claimant complained to her manager (EB) on many occasions. She began to feel threatened by AG’s constant monitoring and her manager ignored her complaints. She was told that she would be voted off the site. She feared losing her job. EB addressed her as “the foreigner” and in front of customers remarked “those foreigners” and “latvo” even though she was aware the claimant was originally from Slovakia. On one occasion the claimant enquired about a staff Halloween party and the manager’s response was that she could go as a prostitute. Another incident involved the manager alleging €160 was missing from the till float but later said that the money was found. During that time the witness had complained about the use of change from charity boxes at the site to top up the cash where shortages arose. The claimant often put forward layout suggestions and ideas for the site and the manager would say they were her ideas. The manager excluded her from office duties and training opportunities. She was not informed of a meeting for all supervisors and assistant managers which was held in September 2011 and found out accidently when she saw a deleted email. She attended that meeting and noticed AG was surprised when she arrived. Another example of isolation was when she attended a conference and was seated at the same table as AG and EB. On returning to the table AG and EB had left and moved to another table further isolating and humiliating her.

The witness had one appraisal meeting with the area manager (CM) and she informed him of the bullying she was experiencing. She believes she was ignored and no action was taken.

The situation only got worse and following AG’s promotion to assistant manager his bad treatment of her increased significantly. The 25 September 2011 was the claimant’s last day at work and she described it as the final straw. On her arrival at work AG told her he had notes on her for the past eighteen months and had spoken to the area manager about her work. She suffered a nervous breakdown and the doctor’s letter of the 24 November was opened to the Tribunal. The claimant was certified sick from the 26 September 2011. She was aware that her partner and his father had communicated this to the respondent and that they were attempting to resolve the situation at site level. A letter dated 16 November 2011 was opened to the Tribunal. Having responded to that letter two meetings were arranged with KR (HR partner). She was informed that a formal investigation would be conducted and the outcome would be communicated to her before Christmas. At the meetings her statement was examined in great detail and the second meeting lasted for four hours. She provided specific examples of bullying incidents however she believes the examples were never checked or investigated fully. The outcome of the investigation was eventually communicated to her and its findings suggested she was the one at fault. Although she really wanted to return to work her health prevented her from doing so. She suffered from paranoia and fear as a result of her treatment in the work place which was exacerbated when the respondent failed to believe her.

DOC the partner of the claimant witnessed two incidents. On one occasion he returned to the site having earlier dropped the claimant off for work. On his return he found her crying and she was attempting to hide her upset. The manager spoke with him and the claimant in the office and he recalled the manager stating “I can’t believe they broke the ice queen – wait until the girls hear about this”. The claimant was very upset and the manager commented that she would not tolerate bullying at her site. The second incident was when he at the request of the claimant picked up stock at another site. On arriving at the site he met the manager and she said “your girlfriend is a fucking eejit”. The claimant asked not to be spoken to like that. The manager later thanked him for collecting the stock which he returned as it was not needed. The claimant tugged at his arm asking him not to comment on what had been said by the manager. He went on to explain how on the 26 September 2011 the claimant suffered a nervous breakdown as a result of the bullying in her workplace. She was unable to care for their young son. A meeting was arranged with CM (Area Manager) which took place on the 28 September 2011. The witness with his father met with the area manager. It was an informal meeting arranged for the purpose of making CM aware of the claimant’s illness brought on by being side lined, ignored and being stripped of her daily assistant manger duties. The question of voting employees off site was discussed and an explanation sought. At the meeting CM first indicated he hadn’t spoken with the site manager in advance of the meeting but later stated he had. A letter from the respondent dated the 16 November 2011 in reply to the claimant’s previous address was opened to the Tribunal. The letter was a request for a full and detailed account of the complaints the claimant had. The witness assisted the claimant prepare her response and KR (HR) arranged a meeting. He along with his father accompanied the claimant to that meeting on the 30 November 2011. KR explained formal and informal process and that she now needed to provide the perpetrators with the claimant’s statement and interview the individuals involved. A further meeting was arranged for the 16 December 2011 which the witness also attended. He recalled the claimant receiving notice of the meeting by text message. At the meeting KR proposed a formal investigation due to the detailed account of allegations prepared by the claimant. He understood the meting was to examine each of the issues raised by the claimant in detail but this was not the case. He believes that the claimant was duped into a formal investigation process when all they wanted was to resolve the issues informally. He expressed concern regarding the content of the final report which found no evidence of bullying at the site and the manner in which it was communicated.

DOC Senior described witnessing the claimant as being incoherent at times and in an anxious state. He was aware of the difficulties she was experiencing at work. Her personality went from being a bubbly person to introvert. He was responsible for arranging the first meeting with CM. CM accused him of being hostile at the time. The issues discussed were as outlined by the previous witness. CM denied any voting policy existed at the site and denied any knowledge of any bullying inflicted on the claimant. CM agreed to speak with the individuals named as the perpetrators. The witness hoped the situation would then be resolved. CM later contacted him requesting the claimant detail her complaint in a statement. At the meeting held with KR and BB the claimant asked if they believed her and in response BB said he did and KR stated she believed that she had experienced a terrible time. At the second meeting on the 16 December 2011 they went through the claimant’s statement in great detail and the claimant was questioned on responses from the perpetrators responses to the complaints. The meeting lasted four hours with no break and he later realised it was a formal investigation meeting. Although he was told the report would be available before Christmas it was not received until January 2012. The witness stated that the option of relocating the claimant to another site including a privately owned site was never offered.

The respondent’s first witness CM the area manager for Dublin North recalled receiving a phone call from DOC senior regarding the claimant. He checked with the site manager who confirmed the claimant was out sick. DOC threatened to contact the CEO if he refused to meet with him to discuss the claimant’s complaints which had led to her sick leave. It was an informal meeting at which he took no notes. Following the meeting he spoke with AP who denied the complaints made against him. The witness informed DOC senior of the outcome and agreed to forward the policy document regarding bullying and harassment. He was accused of being evasive which he denied. He then referred the entire matter to KR and BB. The witness denied that the claimant raised any complaint regarding bullying at the site at an appraisal meeting. He explained that AP’s appointment and assignment to the site as a second assistant manager was necessary due to the size and how busy it became at the site. The purpose of the letter of the 16 November 2011 was to establish what the claimant’s position was as a month had passed since he had spoken with DOC and DOC senior. The witness could not recall the date he last held an appraisal meeting with the claimant and had no note of that meeting and described it as a rating system only.

The second witness for the respondent and HR manager at the time (KR) gave evidence of her role in the case. The matter came to her attention when the claimant’s statement was forwarded to her from the area manager. She experienced some difficulty contacting the claimant however eventually emailed DOC senior. The email dated the 25 November 2011 was opened to the Tribunal. The witness understood that the claimant wished to have the matter formally investigated and had she known otherwise would have considered an informal investigation. The witness added that due to the difficulty she experienced communicating with the claimant she sent text messages to arrange the meetings as it was a quick method of communication.

At the first meeting with the claimant she explained the process involved. She met with the individuals named in the claimant’s statement. The first meeting involved putting the allegations to both in an attempt to get an overview of the situation. She sought written responses from both. A second more detailed meeting was held with the claimant. At the time she also sought advice from IBEC and consulted with the HR director. Having examined the facts she was unable to substantiate the claim. The finding of the investigation was communicated to DOC senior on the telephone. The final report was sent to the claimant and the witness agreed that a complimentary slip was attached. She was satisfied that this was appropriate as she had discussed the findings with DOC senior. KR stated that she informed DOC senior of the option of an appeal being available to the claimant. She had hoped the claimant would return to work and although she accepted that there was a breakdown in mutual trust and confidence there was an option of moving the claimant to another site including the option of moving to a privately owned site.

KR confirmed that there were some minor performance issues with the claimant but no serious performance issues. She confirmed that the personnel files of assistant managers are held in head office. The witness accepted that it is not normal behaviour to monitor another employee or check CCTV footage of another employee in a lower or equal grade.

The HR partner (BB) of the respondent company outlined his involvement in the claimant’s case. He was instructed by KR to meet the staff at the site as part of the investigation. Employees were met on an individual basis. KR had given him prepared questions to ask employees. He found employees were quiet and shy providing nothing which substantiated the allegations made by the claimant. He also attended the two meetings held with the claimant along with KR. He was the note taker at those meetings but did not have the notes with him at the hearing.

AG the assistant manager at the site where the claimant worked gave evidence of commencing employment for a second time with the respondent in late 2008. Overall he had worked at the site five years when the claimant joined and he was in the role of supervisor. The claimant trained him on administration  and he viewed her as his mentor. Following his promotion to assistant manager he informed the site manager in mid 2011 that the workload was not shared equally between himself and the claimant. He was concerned because the claimant would arrive late for her shift and leave early while he was left to delegate work and brief the shift change. He wanted more support from the claimant and he denied ever engaging in any action of bullying or excluding the claimant. He also denied monitoring the claimant’s work when he was supervisor and stated that he never intentionally tried to upset the claimant. AG stated he never viewed the claimant’s personnel file but did have access to her RGT workbook which was freely available. He heard nothing of any bullying at the site until he received a copy of the

claimant’s statement. He agreed he had sought a position for his wife at the site and she worked there on a temporary basis.

EB the claimant’s manager commenced working at the site after the claimant. She described having a good relationship with the claimant and everyone got on well. When AG was appointed assistant manager the claimant seemed unhappy. The witness explained to the claimant that she would have responsibility for training AG. She was never made aware of any difficulty between AG and the claimant other than AG complaining that on occasion the claimant would leave early. At the time she was aware the claimant had a young baby and relied on a lift home. The witness denied ever referring to the claimant as “the ice queen” or a “fucking eejit”. She denied calling her a “latvo”. She described the claimant’s statement as all lies. The claimant never made any complaint of bullying to her and never requested a meeting with the area manager.

Determination

The Tribunal has to decide whether the claimant was constructively dismissed. It is clear that the claimant resigned from her employment on the 25 September 2011. The claimant is claiming that she was dismissed by construction as defined in the Unfair Dismissals Act 1977 which states that

"dismissal in relation to an employee means the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employee".

The Tribunal must consider where because of the employer’s conduct the claimant was entitled to terminate her contract or it was reasonable for her to do so.

An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In the case of Brady v Newman UD 330/1979 the Tribunal stated

"….. an employer is entitled to expect his employee to behave in a manner which will preserve his employer’s reasonable trust and confidence in him so also must the employer behave".

The Tribunal has to decide whether the employer’s conduct amounted to undermining the relation of trust and confidence between the parties in such a way as to go to the root of the contract. The contract test was summarised in the English case of Western Excavating (ECC) Ltd v Sharpe (1978) ICR 121 which stated, inter alia:

" If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance".

The reasonableness test asks whether an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to tolerate it any longer and justifies the employee leaving.

Circumstances which render it reasonable for an employee to terminate the contract of employment may constitute ‘constructive dismissal’ and may also justify resignation. If the changing nature of the tasks for which an employee was employed constitutes a repudiation of the contract of employment then a repudiatory breach would occur and a resignation may be considered an unfair dismissal by virtue of constructive dismissal. The facts of this case do not amount to such a breach of contract to the extent that the employee was left with no reasonable alternative but to leave. Accordingly we consider that applying the case of reasonableness to the Claimant's resignation that he was not constructively dismissed. If the Claimant has an honest belief that he views the work environment as producing intolerable conditions he is entitled to resign and such resignation may be viewed by the Tribunal as a ‘forced resignation’ constituting a ‘constructive dismissal.’ In Wetherall (Bond St. W1) v. Lynn (E.A.T.) 1, Bristow J. stated that:

"Entitlement to terminate a contract by reason of the conduct of the employer is a perfectly familiar concept of the law of contract. Like much else it is easy to formulate but can be difficult to apply…The law of contract for this purpose is that where an employer so conducts himself as to show that he does not intend to be bound by the contract of employment the employee is entitled, at his option, either to treat the contract as at an end, and cease performing his part…The question of what is reasonable in the circumstances having regard to equity which has to be considered in cases of unfair dismissal, applies equally to the facts…It is the conduct of the employer which you must look at…But it is not the epithets which his conduct attracts, but whether you are entitled to treat your contract as at an end, and whether if you exercise your option to do so you have been ‘constructively dismissed."

In reaching its decision the Tribunal considered the law and the cases referred to above and the facts of the appeal before it. In particular it took particular cognisance of the following matters:

The claimant was on certified sick leave from the 26 September 2011 to the 13 February 2012. Nevertheless the respondent proceeded with the investigation into the bullying claim which was inappropriate in the circumstances;

The respondent’s letter of the 16 November 2011 inviting the claimant to furnish a "full and detailed statement, outlining all of the issues is required to enable a full investigation to be completed" was sent to an address which the claimant had left three years previously. The Tribunal finds this surprising in view of the fact that her payslips were sent to her correct address. It is also surprising that this letter was sent by CM the area manager considering that he gave evidence to the Tribunal that on the 6 October 2011 a decision was made that all correspondence would be sent to the claimant’s partner’s father. In view of this the Tribunal wonders why he wrote to her at all.

The decision that the investigation into the bullying allegation was to be formal was not communicated in writing to the claimant. This meeting was notified to the claimant by text message which is inappropriate;

There is a dispute as to whether the claimant received the bullying policy in sufficient time or at all. Even if the Tribunal accepts that she received this (and the Tribunal makes no finding in this regard) the respondent did not follow the procedure set out in the policy which inter alia, states that "any statements taken from witnesses will be circulated to the person making the complaint and the alleged perpetrator for their comments before any conclusion is reached in the investigation".

It appears to the Tribunal that AP was monitoring the claimant in an overbearing manner. Some of the allegations AP made against the claimant are not backed up by the employees who were interviewed by BB during the investigation process.

The bullying policy states, inter alia "both parties will be given the opportunity to comment on the findings before any action is decided upon by management". The Tribunal is satisfied that this did not take place.

There is no satisfactory evidence that an appeal was offered to the claimant. The Tribunal notes that no offer of an appeal was made in writing nor does the staff handbook (which was furnished to the Tribunal on the last day of the hearing) provide for an appeal from a claim arising out of a bullying and harassment investigation.

The Tribunal is most dis-satisfied with:

• the absence of minutes of the various meetings;
• the lack of original signed statements of other employees interviewed as part of the investigation;
• failure to furnish a letter to the claimant that the formal approach to the investigation of bullying would take place;
• notification to the claimant of meetings by text;
• the lack of notes of the appraisal meeting between CM and the claimant at which the claimant alleged that AP was bullying her.
• The investigation report dated the 17 January 2012 was sent to the claimant accompanied by a compliment slip. It is extremely surprising that a report on such an important matter would not be accompanied by a letter. Such a letter would have set out the options (if any) available to the claimant. It would also have brought clarity to what exactly KR offered to the claimant and /or her representatives in relation to returning to work at the site in question or another site. The Tribunal is not satisfied with the evidence given by KR in this respect. The Tribunal does not accept that the respondent could arrange alternative work with an independent retailer as being a viable option.

The Tribunal is conscious of the fact that except in very limited situations an employee must exhaust all avenues for dealing with his/her grievances before resigning. Having carefully considered the evidence adduced the Tribunal determines that the employer did not act as a reasonable employer would have acted in the circumstances. The claimant was justified in resigning her position. The claimant was constructively dismissed.

Therefore the claimant’s claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal deems compensation the most appropriate remedy and awards the claimant €14,000.

Sealed with the Seal of the

Employment Appeals Tribunal

This ________________________

(Sgd.) ________________________

(CHAIRMAN)