EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE - claimant UD1840/2011
against
EMPLOYER - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr S. Mahon
Members: Mr P. Pierson
Mr O. Nulty
heard this claim at Longford on 10th June 2013, 28th August 2013 and 14th January 2014
Representation:
_______________
Claimant: Athru Solutions, Unit K10, Drinan Enterprise Centre, Swords
Enterprise Park, Feltrim Road, Swords, Co Dublin
Respondent: Ms Róisín Bradley, IBEC, Confederation House, 84/86 Lower
Baggot Street, Dublin 2
Claimant’s Case
The claimant gave direct evidence that she worked as a full-time office administrator for the respondent company. She commenced working for the respondent in November 2007 and there were no issues with her work performance. After approximately one year due to family circumstances she requested and was granted a part-time role. Following this change in her work pattern she began to encounter difficulties with her line manager known as FB. She told the Tribunal that he treated her differently from other employees. He was constantly checking on her and shouting at her. He became very aggressive towards her and constantly made remarks about her. He told her daily of the threat that she could lose her job. This had the effect of her crying as she was going to and leaving work. She began also to suffer from panic attacks.
In or around mid-January 2010 matters came to a head and she had a meeting with FB. She told him that she was not happy at the manner in which she was being treated. She told the Tribunal that FB apologized for his actions and told her he was under stress. However he also said that she was being over sensitive. She subsequently went on two days holidays after that meeting and returned to work on the following week. However on her return to work she fainted in the workplace and was taken home. She was certified as being unfit for work by her doctor from 4 February 2010. On 12 February 2010 she received a letter from the company requesting her to attend the company doctor. She did so on 18 February 2010 and the company doctor prepared and issued a sickness absence report to the company.
This report was opened to the Tribunal and recommended inter alia that the claimant should not return to an environment which she perceives as hostile until mediation with a satisfactory resolution has occurred. Subsequent to this report, while still on sick leave a number of e-mails with FB were exchanged concerning her future plans and a return to the workplace. She told the Tribunal that she was not well enough to exchange these e-mails and the e-mails were written on her behalf by her sister. She was told by her own doctor not to have any communication with FB.
She continued to remain on sick leave and in November 2010 returned to the company doctor. She had also been attending counselling over an 8 week period prior to attending the company doctor. By November 2010 her condition had improved and the company doctor recommended that she partake in a mediation process. She wanted to return to work and she engaged her representative to arrange with the company for this process to take place. However she felt panicked by the whole process and would have preferred to meet with someone other than FB from the company. This offer was not made by the company. Her representative then entered into a series of correspondence with the company from February 2011 to June 2011 part of which was a formal grievance raised by the claimant by way of letter dated 18 May 2011 to the general manager known as DF. A grievance meeting then took place on 13 June 2011. Following this meeting where she outlined her grievances she exchanged a number of letters with DF but ultimately there was no resolution to the matter. She believed that the company had no interest in resolving the situation and on 8 September 2011 she wrote to DF submitting her resignation and informed him of her intention to pursue a case for constructive dismissal.
The Tribunal heard further evidence from the claimant in relation to her efforts to mitigate her loss since the termination of her employment.
An official of the Dept. Social Protection presented evidence in respect of the claimant’s social welfare payments since termination of her employment.
Respondent’s case:
FB told the Tribunal that there had been an amalgamation of two functions within the company in or around December 2009. As a result of this the claimant was required to carry out administration work for both sides of the amalgamation. FB knew the claimant was unhappy about this and called her to a meeting to discuss the matter. The plan was that the claimant would keep a record of what work she was doing so that FB could take this to his manager to show that the amalgamation was not working. FB was later surprised to find out that the claimant was very upset after leaving the meeting. The claimant went on sick leave soon after this and FB did not have a chance to meet with her because he was “on the road again”.
The amalgamation was on a pilot basis and after approximately two months the company separated the two functions again.
After the claimant was on sick leave for some time FB authorised a letter to be sent to the claimant requesting her to attend the company doctor. The doctor reported that the claimant was unfit to return to work due to stress and FB was aware of this. FB was also aware that he may have been seen as a cause of the claimant’s stress and in hindsight he felt that he should have taken a step back from dealing with the claimant after that. However he did send an e mail to the claimant and as she replied to him and seemed willing to continue communications with him he felt that it was correct to further communicate via e mail with her. FB was not aware of any allegation of bullying on his part and he wished to keep communications open. His plan was to move to mediation. However the claimant then invoked the grievance procedure and FB had no further involvement in the matter. When the letter of complaint came in against him, FB was shocked and hurt and annoyed. He did not think he was going to be the subject of a complaint.
DF the general manger told the Tribunal that he ran the company on behalf of its three owners. He was aware from FB that the mediation process had not worked and FB also said that the claimant was looking for redundancy. DF said it was not a redundancy situation. He received a letter dated 12th April from the claimant’s representative looking for a meeting to discuss working arrangements upon her return to work. He replied on 26th April saying that he was open to a meeting and wanting the claimant to engage and to use the internal grievance procedures.
A follow up letter from the claimant’s representative of 4th May advised that a formal grievance would be forwarded to DF and refuting that any redundancy payment was sought. A formal grievance letter was received on 18th May.
DF requested a meeting with the claimant on 13th June. The claimant wrote back requesting a change of time and requesting a neutral location (suggesting Swords Co Dublin). DF replied suggesting a different location (local hotel) on 8th July. The claimant agreed to the venue by e-mail but DF did not receive it because of a change to his e-mail address. He assumed the meeting was not going ahead.
By complete co-incidence he was in the hotel with a client on the morning of the proposed meeting. He was taken completely off-guard by the claimant and felt uncomfortable with the meeting going ahead but went back to the office, re-grouped and met with the claimant. He was told by the claimant that she was accompanied by a friend who would take notes but later found out it was a HR professional.
DF listened to all the claimant’s issues. She was reluctant to give names or specifics of people who may have overheard any of the exchanges the claimant alleged occurred between herself and FB. DF undertook to investigate and advised the claimant that it would be done properly and would not be rushed. On his return to the office and on speaking to ex-colleagues he decided that the best course of action would be to get an external consultant. He advised FB of his decision and with the help of IBEC recruited a recommended consultant BC. He met with BC within 2 weeks of the meeting and forwarded the claimants file.
DF had an emergency operation and was on sick leave from 11th July to 22nd August. He sent a letter to the claimant (27th July) on advice from BC looking for further clarification as to whether her claim was one of bullying and harassment or if it remained a grievance as per her letter of 18th May. He enclosed both separate company policies and advised her of the name of the external consultant. This letter was sent by him while on sick leave but as soon as he could possibly do it. The claimant wrote back welcoming the decision and looking for a time frame for the investigation on 29th July.
On DF’s first day back at work he discovered a letter from the claimant. He had assumed that BC would have been in touch with the claimant but that hadn’t happened. He contacted BC within 2 hours of being back at work. DF stated that he regretted the breakdown in communication. He did not accept the claimant’s letter of resignation and asked her to re-consider. He gave an absolute commitment to fully and thoroughly investigate all complaints but her representative said she would not engage.
Determination:
The Tribunal has carefully considered the evidence adduced over this three day hearing. The burden of proof rests with the claimant to demonstrate that her decision to resign her position with the respondent company was reasonable in all the circumstances. In particular, the claimant must show that the resignation was not voluntary and that the respondent company acted in such a way that no reasonable person could or would continue working for the respondent.
The first formal grievance was lodged by the claimant in a letter of 18th May 2011. She met with the managing director in June of 2011. He gave an undertaking to fully investigate the allegations and advised the claimant of the recruitment of an external consultant. The claimant was advised by letter of 27th July of the name of the consultant and while an unfortunate series of events lead to a delay in the process she chose to tender her resignation on 8th September 2011
It is unhelpful that the grievance / complaint procedure did not set out an indicative time frame for the process to be concluded. The lack of an indicative time frame and the actual delay in dealing with the matter warrants the process employed by the respondent being criticised. It is accepted that there was delay. It is a matter for the Tribunal to determine whether the conduct of the respondent was designed to or likely to undermine the claimant's confidence in the grievance/ complaint procedure. Essentially, was the delay of such magnitude or order such that the claimant ought reasonably have no confidence in the procedure itself.
It is an essential ingredient in any appeal process that it is fair and that the parties have confidence in it. The Tribunal is satisfied that the respondent did not intentionally delay the appeal. Another essential ingredient in a grievance procedure is that the employee must, except in exceptional circumstances, exhaust the internal complaints/grievance procedures. The claimant in this instance did not do so. DF had an emergency operation and was out on sick leave for six weeks approximately. Furthermore DF communicated with the claimant while out on sick leave regarding the complaint/grievance.
The Tribunal is not satisfied that the delay could be interpreted to be of such a magnitude that it could undermine any reasonable employee's confidence and trust in the grievance/complaint procedure and ground a claim for constructive dismissal. The reason for the delay, whilst unfortunate, was “ understandable.”
Consequently, in all the circumstances of the case, the Tribunal finds that the claim under the Unfair Dismissals Acts 1977 to 2007 must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)