EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
UD583/2011
Simona Zaino, - claimant
MN621/2011
against
SAP Service and Support Centre (Ireland) Limited,
- Respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes BL
Members: Mr. A. O'Mara
Mr F. Keoghan
heard this claim at Dublin on 4th December 2012
and 24th June 2013
and 25th June 2013
and 13th January 2014
Representation:
____________
Claimant(s): Mr. Colm Hennessy BL instructed by Ms. Madeleine Millar, Feeney-Millar &
Company, Solicitors, 2 College View, Main Street, Tallaght, Dublin 24
Respondent(s): Ms. Mary Fay BL instructed by Mr. Cian Beecher, Arthur Cox, Solicitors,
Earlsfort Centre, Earlsfort Terrace, Dublin 2
The determination of the Tribunal was as follows:-
Claimant’s Case
The claimant outlined in detail to the Tribunal her work experience prior to 2003 when she took up employment with the respondent as an IT Consultant. She has a masters degree in Science and E Commerce from DCU. In her role with the respondent she advised customers on specific issues. She spent six months in the USA and she reported to the office in Dublin. While in the USA, management asked her to train some of the site staff and that initially was not her role. She then returned to Ireland and undertook her normal role.
Initially she reported to a project manager and then JS took over as her manager. She worked three different shifts, 9am to 5p.m. 3p.m. to 11p.m. and 12 noon to 8p.m. She was on a roster and she was very happy in her job, she had lots of friends, her salary was reasonable and performance related and she received bonuses. In 2008 she forwarded issues to HR and reference was made to her trip to the USA. She was a senior support consultant. She received a call from JS as to why she had switched her shift and this allowed the last shift in Dublin to be covered in the USA. JS told her that she was getting an allowance that she was not entitled to.
The respondent had an ISP system in place whereby staff were monitored on the work they undertook. Eight hours could be spent training, time could be spent with customers and this could be viewed by team leader/management. Some requests were not recorded on ISP and they were perceived as missing dates. This was shown as a mistake on the system and on the 18th February, HR confirmed the missing dates.
She did not have any issue with JS but she felt that JS had issues towards her. When she tried to explain a technical problem to him he questioned her right away. She had regular one to one meetings with JS. Team meetings took place weekly and one of the managers attended. A team meeting was scheduled on the 7th September, she was not present as she was on a customer care call. As part of her job she had to audit customers on the telephone and this was done by conference call. This call was scheduled in advance of the meeting but occasionally customers requested that a customer call be done differently. One of the customers she was responsible for requested a quote specifically written by her. The manager had to approve this. JS was not happy with the customer quote and she spoke to the customer who confirmed he was happy with the service provided.
She drafted the quote which was approved internally, this could be approved by JS and others in the respondent who were responsible for quotes. Her quote was sent to the customer who was happy with the service she provided. She told JS that the customer was not happy with certain comments and JS was annoyed and he told her that she should not have sent the quote. She had no further discussions with JS about it and she adhered to the respondent’s guidelines.
She felt that JS did not trust her regarding issues with ISP. She went to AM in HR who told her that they all knew that this was JS’s management style. She spoke to JS before she went to HR in November 2009 and she asked him if he had an issue with her and he told her that this is how he behaved and managed the team.
She co-ordinated a team night out and this was not sponsored by the respondent. Usually managers were not invited due to the informal nature. She sent an e mail to the team on the 7th November and she sent an e mail to staff including JS to confirm the date. JS told her had he been consulted he could have attended. The team based in Spain agreed to cover for them on the night out.
JS discussed the issue of her time keeping with her at one to one meetings and he told her that she was coming to work up to thirty minutes late. She told him that on occasion her colleagues were late. He had a problem with her being late and he did not mention it to the other employees on her team. JS told her that he would do a report on certain employees whom he suspected of being late.
She called in sick one day and informed HR the reason for her absence was that one of her neighbours had a party which continued until 5a.m. She called work and explained to JS about the party, she felt ill and was not going to work. The next day JS called a one to one meeting with her. He told her that the reason she gave for her absence was not acceptable and the previous day he accepted the reason she gave. She asked the Equality Authority for advice and they told her that her employer was not entitled to make a judgement about her condition. She took a vacation day, she was confused as initially JS accepted she was on sick leave and she felt JS’s response was inappropriate. JS told her that he was aware that some employees called in sick as they were hung-over. On the 19th January 2010 she felt the issue was still on going.
She requested an anti-bullying policy from her employer. She sent a separate e mail requesting a copy of the Anti-Bullying policy and by 19th January 2010 she had not received a response. She was still concerned as the behaviour continued; she felt ill and had a problem with her stomach. She was in Italy in February/March 2010 and spoke to her doctor there.
She emailed the CEO in February 2010 and outlined that there was a lack of leadership at management level.
She said that JS had an obsessive focus on minor tasks, sometimes he asked her about personal issues which she felt he did not need to know about. She was supposed to undertake training in Germany in 2009 but two and a half weeks prior to this she had family issues that she needed to attend to. He asked her for details and she told him that her parents were caught up in the earthquake in Italy in 2009 and were staying in emergency accommodation. She was stressed, her parents decided to come to Dublin for a number of weeks. JS asked her for full details of the situation and she felt that he invaded her private space. JS questioned her commitment to the respondent. She applied for a transfer to another team. At some point she mentioned to AM in HR that she would like to move to another team as she was aware that there were some vacancies on this team.
JS told her in February 2010 that there were no vacancies and he told her she could move back to her old role which was a support role. In February, March, April and May 2010 JS was still picking on her. By June 2010 AM had left HR and was replaced by MMcC. At that point the same issues were unresolved. Mediation with JS was suggested at the end of 2009. The last communication she had with HR was with AM who told her that she could resolve issues with one to one meetings and that eventually JS will understand. Up until this nothing had changed in his behaviour.
She mentioned issues with JS and she told MMcC she would like HR to get involved. At the first meeting she did not give details as she assumed records of mediation and reasons for mediation were retained. No one explained to her that mediation meant sitting in a room and talking. She did sit in a room and air issues and there was no follow up. AM took notes but the claimant did not receive these notes. At a meeting on 21 June 2010 she told MMcC that she experienced serious health problems and she had developed panic attacks. After the email of 22nd June 2010 she sent her a summary of previous records. MMcC suggested that she speak to the company doctor. She had not received the respondent company’s anti-bullying policy. She decided not to participate in mediation a second time as the first time it did not help.
She went to her GP. She could not recall if she sent the medical certificate to HR or delivered it personally and there was no specific process. The policy in place was that if you were absent on sick leave for a week you had to provide a medical certificate to HR.
On the 29th July 2010 she submitted her resignation. Leading up to that she felt she wanted to resign because of health issues which were as a result of an investigation not being resolved and it did not look like there would be a resolution. HR suggested that she go to the company doctor. At a meeting that she attended on the 2 July 2010 she did not recall that anything specific happened. MMcC mentioned mediation and when she asked what that entailed she could not define it for her. She had gone to HR and spoken to JS. She told MMcC the only option for her was to leave the respondent, she had tried to move to another team and she was not allowed. She tried to resolve the matter with JS and she was not aware of any other options.
Post resignation the next conversation she had with MMcC was a discussion about attending the company doctor whom she attended on the 10th August 2010. The main doctor was not present. Dr. W told her he would obtain some information from her and give it to Dr G. Dr. W asked her a few questions, it was not a thorough investigation and he told her he would speak to Dr. G. She was given the opportunity for free counselling. She did not see the respondent’s anti-bullying policy. On the 12th August 2010 she had a meeting with MMcC who asked her to have a witness present but she declined as a witness would hear about her health problems. Health issues were raised at the meeting. MMcC gave her a leaflet which indicated that she was not entitled to sick leave but she could take hours off if she felt she needed time off.
Nothing was done regarding the issue with JS. MMcC told her JS was on holidays for a month and she needed more time to investigate the matter. The claimant told her that she did not feel confident with the situation. She felt the only option was to leave the respondent MMcC asked her if she was sure she wanted to resign as she the claimant may not be able to find a job easily. The claimant had financial obligations, she was looking at other work and she was very happy with the respondent for the last eight years.
MMcC took the minutes of the meeting on the 12th August 2010. The level of stress amongst the team was quite high. She relayed an occasion where one of her colleagues was screaming in an open plan office and everyone could hear her. This situation did not help the claimant. By letter dated the 27th August 2010 there was no reference made to a meeting with MMcC. She did not know what the options were, she was given a leaflet on the EAP, and offered holidays if she needed time off.
At the resumed hearing on the 24 June 2013 the claimant stated that once she left the respondent her health improved gradually. She felt her confidence was undermined by bullying and affected her ability to look for a new job. She worked for a Consultant Company from September 2011 until December 11. She was in receipt of social welfare benefit. She is due to commence work in Delhi in July 2013. In the current climate it was not easy to find a job. She has a contract in India for a few months.
In cross examination the claimant stated that she worked for a software company from June 2012 until January 2013 and earned €55,000.00 per annum and no additional bonus.
She did not work in New Zealand. She undertook consultancy work in the Cork Opera House assisting the director of opera which is a hobby. She did not make a profit from teaching tango dancing. For the past ten years dancing was her hobby and she gave instruction in yoga for which she received an income and she did not make a profit on this. She spent three to four months in New Zealand in 2011. She was actively seeking employment during that time. She did not receive job seekers benefit while in NZ. She went to Italy for a few weeks after she resigned from the respondent. She did yoga and meditation to deal with the issues she had.
Panic attacks did not affect her intelligence or her ability to look for work. She had to attend counselling as bullying undermined her confidence. She sought employment prior to submitting her resignation due to the situation she was experiencing with the respondent.
After 2 May 2010 JS sat across from her and even though he was not her direct manager he made a comment after a meeting about her non-attendance and he was still watching her.
He accused her of accepting an allowance while she was in the USA. She never discussed allowances with management. In 2009 CM was her line manager and when he was away she thought JS took over. There was a problem with the ISP system which indicated that she had missed days at work. It was about JS not believing her. JS told her at a one to one meeting that she was not ISP compliant and that she always had to fight her corner. She was reprimanded for missing a meeting but her colleagues who missed meetings were not reprimanded. She had informed JS that she had to attend a conference call.
After the meeting JS told her in front of colleagues that she had missed the meeting. She told him that she was at a conference call with customers. The respondent requested that employees provide a quote for customers. The quote had to refer to the service the respondent provided and what the respondent did. The final quote was approved by JS. JS asked her to explain the quote which she did. On 5th November she submitted a further quote to the customer and the customer was happy with the service she provided but would not approve the quote.
When put to her that JS felt that she should not have asked the customer for a quote in the circumstances she replied that she could not recall if the customer complained about the quote. The customer explained that he was not happy with the quote to the respondent in general and she told JS. She could not recall if there was something in the system that indicated that the customer was unhappy.
If she had been aware that the customer was unhappy she would have discussed it with JS. When she sent the draft to JS he did not tell her that there was a complaint from the customer. She only became aware of this when she gave the quote. She had a meeting with someone in the legal department to clarify what the issue was.
She co-ordinated a team night out and the manager was not always invited. When the team became aware of the event they contacted the manager. JS sent her an e mail that he had not been asked if he was available to attend the night out and he informed her he was not able to attend.
In an email she queried JS if there was an issue of him not trusting her. She thought the issues were lack of trust. She attended a mediation meeting on the 23 November 2009.
She was never given a copy of the anti-bullying policy. She reiterated that the meeting which took place on the 23d November 2009 was a mediation meeting. This meeting was an attempt to resolve the issues between JS and the claimant. She brought a witness to the meeting as she wanted someone who was neutral. She agreed that she had access to all company documents if she had an HR issue. She could not remember if she found the documentation on the HR portal. She sent an e mail on January 2010 and requested the document and she copied it to CW.
The day she called JS to inform him that she was ill as she had not slept JS told her it was okay and that he would see her the next day. The next day JS told her she would have to take a day’s leave for it and she was unhappy about this. She was not given the option of working a late shift. JS went to HR regarding the matter and she had to take a day’s leave. She queried the fact that some of her team members called in hung over and sick leave had been approved. JS was not entitled to make a judgment on her condition. She agreed that she was late on occasion in reporting to work by five to thirty minutes. She relied on public transport.
She made an application to transfer to another section. She was offered mediation to address the issues. She could not remember if McC informed her she was going to be on annual leave. She sent McC an e mail on the 2nd July 2010 in which she outlined her concerns. It was clear in the claimant’s e mail that she could not find the company policy on the portal. She could not remember having a meeting with McC on the 19th July 2010. She never received an e mail from the respondent as to how mediation had taken place. She wanted to know the exact process to follow and no one ever explained what the formal process would be. She could not remember what was discussed at a meeting on the 5th August 2010.
She agreed that there would be a thorough investigation if she retracted her resignation which she submitted on the 29th July 2010. At that point her panic attacks and stomach problems were getting worse. She first visited her GP on the 18th May 2010 and she discussed stress, issues at work and she told her about stomach problems. She was certified unfit for work between the 18th May 2010 and 28th May 2010.
Mediation was mentioned at the meeting she attended on the 4th November 2009. JS was no longer her line manager in May 2010 After this JS told her that she did not attend a meeting, he told her she was on a conference call with a customer.
In answer to questions from the Tribunal when it was put to her when mediation took place how she characterised JS’s behaviour she replied that she addressed a number of incidents that occurred. The main issue was not really discussed, it was a general conversation. She maintained that the frequency of the issues she had with JS amounted to bullying. She was not familiar with the procedures and processes regarding bullying. She did not think of documenting all the issues she had in writing. She documented everything from May 2010 onwards.
She definitely handed in the medical certificates dated the 15th June 2010 and 16th July 2010 to the respondent and she could not remember who she gave them to. She was disappointed about the meeting she had with HR. Lack of trust was never mentioned.. She could not remember if there was a search engine on the PC policy portal. She recalled looking for the policy and she could not find it.
EOR, GP on behalf of the claimant told the Tribunal that the claimant attended her practice on the 18th May 2010. The claimant had two issues, she felt bullied in work and she had stomach problems. The claimant attended on the 17th August 2010 and she told EOR she had resigned due to difficulties in work. The claimant told her she was offered repeated mediation. The HR manager referred the claimant to the company doctor who in her report indicated that the claimant was medically fit to work. The claimant suffered panic attacks and she was not psychiatrically ill and EOR felt that claimant was suffering from stress.
In cross examination EOR stated that the 18th May 2010 was the first time that she saw the claimant and she had previously been seen by other doctors in the practice. The claimant attended her on 15th June 2010. EORs job was to keep people as well as possible. The claimant was back in work at this time but was getting panic attacks. After a lengthy discussion with the claimant she felt it would be a good idea if changes could be made to the claimant’s work practices. It was her understanding that JS was the claimant’s manager. She requested that the claimant not be intimidated and she recommended a book to the claimant. She referred the claimant to HSE counselling a month later. She did suggest that the claimant attend TCD to see if they could help She did not inform the claimant about the EAP. She saw the claimant on 11th August 2011 and she did not have panic attacks for a few months. The claimant was still out of work. On the 11th August 2011 they discussed anxiety and options for counselling. She referred the claimant to HSE counselling service.
Respondent’s Case
JS told the Tribunal he was director for the respondent’s Global Support Centre in Ireland . At the end of 2008 he was asked to take over the SAC role. The claimant reported to the manager who reported to him. The claimant transferred to SAC and he was then her direct manager in addition to undertaking other roles. This role ceased on the 1st May 2010. Managers and employees worked in an open plan office. In 2010 the building was remodelled and other teams were in the support area.
The claimant requested to work in the USA office for personal reasons and this request was granted. While she was in the USA the late shift co-ordinator contacted him and informed him that the claimant was doing the day shift. He asked the claimant if she swopped shifts. The claimant told him that she had not and that was the end of the matter. He wanted to ensure the claimant was clear on her role in the USA. She undertook work for the Irish company while she was in the USA.
The respondent had an IP telephone reporting system which meant that team members had to take direct calls from customers. The respondent received complaints from its HQ in Germany. He had to establish when employees were logged in. He followed up with employees who did not have the right percentage of calls logged. Several employees were unable to sign the telephone standard report every week. He sent a report to the claimant as he was endeavouring to clarify with her what days she was missing. This had occurred eight weeks in a row. In one week in February it was entered as a system error and in subsequent weeks it had missing dates. The claimant was not able to follow the process consistently. He sent a general email to employees regarding the missing days. He endeavoured to establish how missing days occurred and the claimant was not singled out.
The claimant’s review took place on the 5th January 2010. The claimant fully met expectations.
The claimant’s colleagues asked him on two to three occasions about the claimant’s absences and he followed up on this. The team had a heavy workload and this had an impact on them. On some occasions the claimant was thirty minutes late when reporting for work. Employees were late occasionally and it was important for him to address this. The claimant told him that the bus was late and he told her that she needed to figure a way to get to work on time and get an earlier bus. It was possible that the claimant’s colleagues reported late for work but he was never informed about this.
The claimant sent him a draft of a quote she had completed for a customer but it did not adhere to the respondent’s criteria and the claimant revised it. The customer did not approve of the quote and requested to speak with the respondent management and set up a meeting with the customer. He sent an email to the claimant on the 28th October 2009 whereby he questioned her judgement a week before she spoke to the same customer. He was critical of the fact that she then requested a quote on the 28th October 2009. In an email dated 23rd November 2009 he questioned the claimant’s judgment.
A meeting was arranged but the claimant did not attend as she was on a call with a customer. He clarified the changes with the customer who complained about service entitlement changes. He told the costumer it had changed and handed it over to another SAC. The customer was not happy with the reply.
He requested the claimant to attend a meeting in relation to a team night out. The claimant requested to swop her shift and he did not realise that she had an employee scheduled to work for her. He was challenged on a regular basis by the claimant and it was not that she did anything wrong. He felt that the claimant was withholding information from him and swapping shifts.
He had one to one meetings with AM and they discussed general topics as well as the team. He spoke with AM about team performance, new initiatives, objectives and a wide list of topics. Mediation would be informal and he knew mediation was offered to the claimant.
The protocol in relation to attending team meetings was if you could not attend you advised the manager in advance. The claimant was not at the team meeting. He sent her an e mail after the meeting. She told him she was on a call with a customer. He was irritated with her and he told her that her attendance at the meeting was mandatory and that she should let the team know. He did not think that this was an issue that would come up. It was his assumption that employees knew that attendance at team meetings were mandatory
All employees attended a meeting on the 16th June on how to deliver reports to customers. The claimant was not at the meeting and she told him she was on a call. He may have used a tone of frustration when speaking to the claimant but he could not recall the words he said. The claimant was at her desk after the meeting concluded.
If the respondent had a team night out another office had to cover the shift. It was usual for managers to attend the night out. He wanted the team to know the reason he was not attending. If a night out was being organised he would provide alternative dates. He was not consulted on the dates and he was celebrating Thanksgiving. Before the date was decided they would discuss it. He was concerned about coverage on team nights out. The email was sent to the entire team on the 20th November 2009.. Once the date was decided there was a scramble to get swaps with the office in Spain.
On the 14th January 2010 the claimant called him and told him that she was not going to be in the office. She told him that her neighbours had a party in their house until 6am, she was feeling tired and she requested to take a sick day. He had to get advice from HR and the claimant had to take a day’s holiday. He did not call her back when she called in sick and offer her to work an alternative day. The late shift commenced at 3p.m. and the night shift from 12 noon until 8p.m.
On the 23rd April 2009, training in Germany was approved for the claimant. He told the claimant to book flights and hotels. On the 15 June 2009 the claimant sent him an email that she could not go to Germany to undergo training for personal reasons. The claimant then told him that she had not booked anything and he felt she had not planned on going at all. He arranged a meeting for the 17th June 2009. He still had a question as to why the trip was not booked in April 2009. Training slots were scare and he did not understand why she did not book the trip. She told him that she would book the flight at the last minute. It was corporate policy to book the flight in advance. Another employee was allocated the training slot. She told him that she did not go on the trip for personal reasons. He felt that an explanation of persoanl reasons was insufficient and tat she should provide more detail. He addressed issues of not booking the trip in April 2009.
He could not recall having a discussion with the claimant about her request for a transfer to another area. A request for a transfer could be submitted at a weekly recruitment meeting. Anyone could apply for a transfer. He met MMcC (HR) in June 2010 who spoke to the claimant as the claimant had concerns about the way things were going in the team. MMcC was new and he tried to inform her on the history. A subsequent meeting took place on the 16th July 2010 where he and McC discussed the claimant’s situation. They spoke about why the claimant was not at the team meeting. MMcC asked him if he could have behaved in a different way.
In cross examination he stated that if there were issues he had to seek clarification from HR. The claimant received a fair and thorough rating in her work performance review at the end of the year and if it was not favourable it affected the bonus. There were several issues with the claimant. He asked her if she understood the situation about switching shifts. The claimant requested to work in the USA for personal reasons and her line manager approved. The shift co-ordinator suggested that the claimant was moving her shift to coincide with the hours that the staff in Ireland worked. IP telephones were special telephones for call customers. The customer in Germany complained that the respondent was missing calls and the respondent had to provide training. He could have had a one to one discussion with the claimant regarding this. Everyone occasionally missed days and it was very rare that someone would not complete a time sheet.
He expected all of the team to attend team meetings. If an employee could not attend they should inform management before the meeting took place. He would have expected the claimant to contact him regarding the team night out. He asked the claimant when she called in sick if she could be in work the next day. He had never come across a situation where someone called in sick due to tiredness and they had lengthy discussion on the topic. He felt that he was as clear as he could possibly be. The issue was raised again in February when sickness was being reviewed.
He was not the claimant’s direct line manager after the 1st May 2010. Employees moved desks a lot. Details of all weekly recruitment was sent to all employees. He did not micro manage the claimant. The claimant’s performance review was satisfactory and it resulted in a very generous bonus for her. HR approached him about interpersonal difficulties. He tried to seek mediation. He attended a meeting on the 24th June and he was asked him to reflect on feedback from the claimant. He had no issue January to June 2010 and the team was handed over to MA in May 2010. The claimant resigned while he was on holidays. He disagreed that he bullied the claimant. He felt that mediation would resolve issues.
In answer to questions from the Tribunal he stated that the claimant had issues with him. The claimant’s issues impacted on each individual. The claimant was less than average compliant. He did not mention an appeal to the claimant as far as he could recall.
Sick notes were not handed to her direct manager. He did not see the medical certificates. All employees were familiar with the respondents policies.
The HR Director told the Tribunal that all employees had access to the respondent’s policies. The policy regarding bullying and harassment was available on the intranet. Each year documents were reviewed and revised. If an employee needed to travel by plane as part of their work the respondent had a travel agreement whereby it used specific airlines. If an employee had a difficulty in locating the policy on the intranet you could log a HR ticket and the HR specialist would email it to the employee.
AM told the Tribunal that she was employed with the respondent as a HR business partner in May 2008. She supported managers and employees at meetings regarding terms and conditions of employment. She went on maternity leave in May 2010 and returned in January 2011. All the respondent policies and procedures were stored in a portal on the computer which was easily accessible. If an employee had a question it could be done through HR directly or through a tracking/telephone system.. A service level agreement was in place that was responded to within 24 to 48 hours. If it is a sensitive matter HR will meet with the employee. The bullying and harassment policy was available on the portal. In 2008 the claimant availed of Carers Leave and she discussed this with the claimant. In 2007 the claimant availed of part time working in the respondent.
The claimant had two main issues with JS. The claimant felt that JS did not trust her and he did not recognise her abilities on the team and she did not like his management style. She told the claimant that if she had issues with JS she could discuss it one to one with JS and she told her she could speak to JS. The claimant told her she would give it some thought and follow it up with her.
She had a first meeting with the claimant in November 2011. The claimant felt that being honest with JS would not work. The claimant felt that JS’s approach to the team was wrong. She gave the claimant three options (1) meet with JS one to one, (2) she was willing to speak to JS and (3) mediation. She explained mediation to the claimant and the claimant was not responsive to it. At the meeting on the 4 November 2009 no reference was made to mediation. On the 11 November 2009 the claimant mentioned mediation.
She met JS and he told her that he had challenges with the claimant regarding her time keeping and ISP compliance. JS told her that other employees had challenges with ISP. The claimant’s preference was to address issues of trust with JS. It was not usual to have a witness at a mediation meeting. She explained mediation to the claimant the previous week. She would set it up and then meet both parties and work through it to obtain a resolution.
JS set up a meeting to talk about late shift arrangements. There must be a team member willing to swap to ensure continuity. There was confusion with the claimant and JS. The claimant was a mentor for despatching. JS called from Spain regarding cover for a night out. There was a lack of communication between both the claimant and JS. There were two occasions regarding mentoring in one week. The claimant had not given JS all the information he needed. JS needed to consider the impact. The claimant and JS spoke and the witness and D were in the room. The witness took notes and JS outlined his position. The late shift was discussed at the meeting on the 23 November 2009. The claimant did not revert to her after the meeting.
The claimant was tired on one occasion due to a party next door to her apartment. She told JS that this was not deemed to be a sick day and it would have to be a vacation day. She told the claimant that the respondent should not be expected to pay sick leave for tiredness. The claimant told her that employees phoned in sick with hangovers. She told the claimant that she (the claimant) knew where the portals were regarding employee services. She knew that the claimant was very familiar with policies. The policy regarding medical certificates was that they should be submitted after three days after an employee was absent. Medical certificates were sent to the manager and the manager sent it to HR.
Prior to her going on maternity leave she was not aware of issues with the claimant’s health. The claimant had resigned prior to her returning from maternity leave.
In cross examination she stated that the claimant did not mention the word bullying at the meeting on the 4 November 2009. The claimant told her it was a feeling she had. The claimant did not feel that she had to do things as rigidly as suggested in the team. She wanted the claimant to speak to JS. She felt that the claimant was so well established that she could do this herself. She introduced the topic of mediation. She did not meet with MMcC (who deputised for her while she was on maternity leave) prior to her commencing this leave. She did not tell the claimant that JS had problems with other employees. .
MMcC told the Tribunal that she deputised for AM while she was on maternity leave. She had no prior meetings with anyone in the respondent. She first met the claimant on the 21st June 2010. The claimant told her she was suffering from illness, panic attacks and anxiety which was caused by work. The claimant told her that she had cancelled a training session abroad two weeks prior to it commencing and JS was very upset. The claimant’s family came to Ireland due to an earthquake in Italy. The claimant did not feel that JS trusted her and that there was not a good team atmosphere in work. The claimant felt that JS observed her lateness more than anyone else and she felt singled out. The claimant told her that JS did not understand her concerns. She felt that JS needed to change his ways. The claimant told her that AM conducted mediation. The claimant was attending her doctor and she had panic attacks and stomach problems. MA was the claimant’s boss in May 2010. She asked the claimant what did she think the solution was and she did not have an answer. She told the claimant she would revert to her. Her objective was to come up with a resolution and it was all about the claimant at that point.
She met with JS on the 24th June 2010 and he told her that there was a history with the claimant’s work. The claimant had cancelled training in Germany and this had taken a lot of planning so that employees can go and there was also a budgetary consideration. She asked JS a number of questions and if he and the claimant could resolve their differences. JS told the claimant that team meetings were very important. On one occasion the claimant had dealt with a customer call and decided that the call was more important that the team meeting. The witness told JS that the claimant felt there was a lack of trust between them.
The witness went on holidays from the 29 June 2010 to the mid-July 2010. Prior to her holidays she told the claimant if anything occurred that she was to contact HR. She had no previous notes on the claimant. On return from her holidays there was a one day gap between her and JS going on holidays. She met JS on that day and she asked him if there was anything they could have done differently and he replied no. JS was going to the USA for a month and she told JS that they needed to address how the claimant felt. Her plan was to conduct a comprehensive search of files.
She was completely shocked on receiving the claimant’s resignation on the 29th July 2010. She contacted the claimant. She received an e mail from the claimant on the 4th August 2010 in which she outlined the reasons she had resigned from the respondent.
She wanted to know why the claimant was resigning. At the last meeting with the claimant, the claimant was not well. The claimant told her that two of her colleagues shouted at her. The claimant’s colleagues asked the claimant why queries were not responded to until three weeks later. JS was in the USA at this time. The claimant told her that the atmosphere in the team was very bad and people did not want to go to lunch together anymore. She told the claimant that she would like to talk to these colleagues and the claimant told her that she would talk to them herself. She told the claimant that she should address this matter and she spoke to the claimant’s colleagues the next day.
She thought it was a good idea for the claimant to attend the respondent doctor on the 10th August 2010. The claimant was in work at this time. She asked the claimant to meet her again and she asked if one of her colleagues would attend. The claimant was very emotional. The report of the medical doctor indicated that the claimant was fit to return to work. The claimant was very distressed about this. Resignation was not the only option that the claimant had. From the moment the claimant went to her she was very engaged with her. There was no expectation on the claimant to make a decision immediately. She wanted to find the best solution and there was no ambiguity
In cross examination she stated that her focus was a resolution of the matter. The policy was visible on the PC portal even to a new employee. The claimant told her that mediation had taken place and she did not tell the claimant that there was no mediation. She was surprised and disappointed when the claimant submitted her resignation on the 29 July 2010. The claimant could have spoken to a team of business partners and management while she was away.
MA told the Tribunal that she was the claimant’s manager in May 2010. She was part of a team and she joined the respondent in 2008. Issues arose in relation to some tasks that the claimant was supposed to do. Three weeks before the 20 July 2010 two colleagues told her that the claimant had not completed a task she was supposed to do. She wanted to have the claimant remain in the respondent. She had a one to one conversation with the claimant and the claimant told her she was going to resign. The claimant told her that there were two instances with two colleagues who shouted at the claimant three weeks apart.
Determination
The claimant commenced her employment with the respondent in 2002. She resigned her employment in July 2010 in circumstances that she claims amount to constructive dismissal.
For a period of about fifteen months towards the latter end of her employment, the claimant’s immediate manager was JS. She told the Tribunal about a number of issues that she had with JS and with how JS dealt with her. JS, in his evidence, did not accept that he had treated the claimant in any improper manner. For reasons that will become evident, the Tribunal does not have to resolve the contradictions between the evidence of the claimant and that of JS.
On 4th November 2009, the claimant had a meeting with AM, from the respondent’s human resources department. The claimant discussed her relationship with JS and problems that she felt she was having. AM suggested that the claimant should discuss with JS her difficulties with him or, alternatively, should the claimant prefer AM would discuss them with JS. They met again on 11th November 2009. The claimant was reluctant to discuss matters directly with JS. AM explained the necessity of JS being informed of the difficulties so that he could try to resolve them. She suggested that the claimant try mediation with JS as a way of resolving her difficulties. AM told the Tribunal that the claimant did not appear to favour this option. The following day, the claimant sent an email to AM in which she appeared to suggest that her preference was for AM to informally discuss the matter with JS and that the claimant would thereafter discuss it in detail with JS. She said that mediation could then be tried, if required.
About two weeks later, JS wanted to discuss with the claimant issues relating to recent late shifts. JS asked AM to attend this meeting. The claimant brought her own witness along. In the course of the meeting the claimant’s witness queried the HR’s involvement in what was clearly a team-management issue. AM explained to him the background of her recent discussions with the claimant and JS and that her role at the meeting was as a note-taker. She explained that, in respect of the claimant’s problems with JS, an offer of mediation had been made and that this offer remained open. It is clear that this meeting could not have reasonably been construed as a mediation.
On 14th January 2010 the claimant phoned in sick. The reason that she gave to JS was that her neighbour had held an all-night party and that the noise from it had kept her awake. Accordingly she was too tired to come to work. Having, quite properly, sought advice from HR, JS told her that this was not a sufficient reason to take a sick day and that she would have to take the day as annual leave.
Thereafter, AM had no dealings with the claimant. The claimant did not return to request any further assistance nor to request that a mediation be set up. Given that her last direct interaction with the claimant had ended with the claimant indicating that she would revert, AM considered that the matter had been dealt with. AM went on maternity leave towards the end of March 2010. She did not consider this to be an on-going case when she was handing her portfolio over to MMcC. Consequently, MMcC was unaware of any issue until she was approached by the claimant on 20th June 2010. A meeting was then arranged for the 21st June. Following that meeting, MMcC then met JS and discussed matters with him. He told her of the history of the matter as he understood it. MMcC again met the claimant on the 25th June. She explained that she was about to commence two weeks annual leave. On her return, JS was due to commence four weeks annual leave. She explained to the claimant that she would be supported through her issues. She told her that on her return she would develop a plan to deal with the matter on JS’s return. MMcC told the Tribunal that she felt that, on her return from annual leave, she would have a month in which to more comprehensively search for files and other relevant information. She also felt that if JS was the problem, then the problem would not arise during the month of his absence. She also gave to the claimant the name of a person in HR that she should contact should the need arise during MMcC’s absence.
On 27th July 2010, midway through JS’s leave, the claimant wrote indicating her intention to resign her employment and giving one month’s notice. It appears that it was only after that date that the claimant detailed her issues in writing. After her resignation, MMcC continued to meet the claimant to discuss her issues. It was made clear to the claimant that the respondent would be happy for her to withdraw her resignation. She was also told that the respondent would continue its investigation into her complaints to completion. In the course of these post-resignation discussions, the claimant made a complaint about members of the team other than JS. She was told that these complaints would also form part of the investigation. Nonetheless, the claimant confirmed her intention to resign.
It is also of note that JS, for company-organisation reasons, had ceased to be the claimant’s manager on 1st May 2010. All her issues with him, bar one, pre-dated that.
The claimant made issue about the non-availability of the respondent’s bullying and harassment policy. The Tribunal is satisfied that it was readily available, along with all other policy documents, on the respondent’s intranet portal. The Tribunal is further satisfied that this was explained to the claimant and that the claimant was capable of accessing information on the portal.
It has been long held by the Tribunal that the test for constructive dismissal is a high one. It has also been long held that an employee with a grievance arising from his or her employment must, in the ordinary course and unless special circumstances arise, inform his or her employer of the nature of the grievance and afford the employer an opportunity to resolve the matter. Similarly, an employer that wishes to dismiss an employee for performance issues must address them with the employee and afford the employee a sufficient opportunity to address them.
The Tribunal is satisfied that the claimant resigned, at least principally, because of perceived inter-personal issues with JS not having been resolved. However, in her initial dealings with AM, the Tribunal is satisfied that the claimant created the impression that she did not require any further assistance. While it might have been helpful had AM’s notes been more readily available to MMcC, that they were not is understandable in the circumstances. As noted above, it is of significance that JS had not been the claimant’s manager since 1st May 2010 and that only one of the incidents complained of had occurred thereafter. The Tribunal is satisfied that the respondent intended to fully investigate the claimant’s complaints made to MMcC. Further, the Tribunal is satisfied that the claimant was aware that MMcC wanted to help her resolve her issues but that progress could not be made until after JS returned from annual leave in mid-August. Nonetheless, in late-July and in the middle of JS’s annual leave the claimant tendered her resignation. The Tribunal is satisfied that the respondent did not have a sufficient opportunity to investigate or resolve the claimant’s issues. Further, the Tribunal is satisfied that the respondent gave the claimant the opportunity to withdraw her resignation and indicated its intention to fully investigate her complaints. Given that the claimant did not afford the respondent this opportunity before she resigned the Tribunal is satisfied that the claimant does not meet the test for constructive dismissal. Therefore, it is not necessary for the Tribunal to make any determination in relation to the merit or otherwise of her complaints. Accordingly her claims under the Unfair Dismissals Acts, 1977 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005 must fail and are accordingly dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
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(Sgd.) ________________________
(CHAIRMAN)