EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF:
CASE NO.
Mairead Murphy UD2295/2011
against the recommendation of the Rights Commissioner in the case of:
Peter Mark
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr D. Hegarty
Mr D. McEvoy
heard this appeal at Cork on 12th November 2013 and 17th February 2014
Representation:
Appellant : Mr. Eamonn Moloney, Eamonn Moloney & Co, Solicitors, 1/2 Anglesea Street, Cork
Respondent : Ms Amanda Manley, IR/HR Executive, IBEC, 84/86 Lower Baggot Street, Dublin
This case came before the Tribunal by way of an appeal by a former employee against a Rights’ Commissioner’s recommendation reference r-111981-ud-11.
This is a case of constructive dismissal
Appellant’s Case
The appellant was a senior hair stylist in the respondent’s salon, having commenced the employment there in the spring of 1995. In late summer 2008 the appellant’s relationship with the respondent changed and she was put on a performance improvement plan because her performance figures had decreased. She had performance meetings every six weeks with the salon manager (SM), at which expected figured as compared to actual figured were discussed. This development and the constant monitoring left her feeling undermined at work and this was compounded when her work station was moved towards the middle of the salon, close to the manager. She was on the performance improvement plan for two years and she dreaded going into work. In June 2009 SM issued her with a “verbal counselling” and threatened her with disciplinary action if she did not improve. From there on she was threatened with disciplinary action at the end of the performance meetings and she felt her job was in jeopardy. Only one other senior stylist and some juniors were on performance improvement plans.
In August 2010 the area manager invited her to a meeting with SM and herself about her lack of progression over the past six months and she was told if she did not improve she would be put back on the performance improvement plan. She informed them that the performance improvement plan was the cause of her stress. She did not take up the area manager’s suggestion that she move salons; word spreads to other salons. She agreed to do a course on colouring, which she did in late summer and enjoyed.
The ongoing supervision had a significant impact on her health and during her holidays she could neither eat nor sleep. The appellant visited her doctor and was on certified sick leave from13 September 2010 to 4 October due to stress related illness and two days following her return she was again absent on further sick leave. She continued to feel undermined, her confidence was gone and she was broken and unable to face reporting for work.
The appellant received a letter dated 8 December 2010 from the human resource generalist (HRA) asking her to contact her about her return to work. The appellant replied by letter dated 16 December outlining her concerns. In further correspondence between them HRA informed the appellant in March 2011 that she had not received any letter dated 16 December from her and on 10 April the appellant furnished her with a copy of the letter (see below).
A meeting to address the appellant’s situation took place on 16 May 2011 but no definite solutions were found to her problems. The appellant indicated that she did not wish to utilise the informal route provided for in the grievance procedure to resolve her issues despite alleging bullying and harassment at work. She did not want to go back to the salon where she had worked. Her position was that her problems started with targets and figures. She could not tell them what they could do to get her back to work; her confidence was gone and she did not know if she could ever go back to work. She rejected alternative options put to her. The appellant’s friend explained that she was in a very low place. The appellant confirmed that she had never disputed SM’s assertions at the performance meetings as she was afraid to open her mouth.
When she read and considered a further letter dated 23 May 2011 from HRG, the appellant replied a few days later. On 27 May she gave written notice of her intention to resign from her employment. At that stage she was frustrated and dissatisfied with the way she had been treated and such treatment had caused her much stress.
In cross-examination the appellant accepted that the respondent was not unreasonable in issuing work reports and targets to her. Furthermore, she accepted that the respondent’s offers to place her in another salon and to retract its acceptance of her resignation were reasonable.
Respondent’s case:
SM, the salon manager had been the appellant’s manager from 2002 and they enjoyed a good relationship over several years. Senior stylists are expected to have around an 80% client request rate and their relationship with customers is of the utmost importance in reaching this standard. Weekly one-to-one meetings are held with stylists, at which the previous weeks work is gone through and the stylists are given coaching (hints on what to say to customers, how to up-sell the services such as treatments available and additional colour services on offer) in order to retain their client base and build the business and the weekly take.
The appellant’s performance (KPIs) was well below the required standard and she was put on a performance improvement plan in late July 2008, which was to involve regular monitoring and performance meetings. Stylists are monitored on four criteria: number of weekly clients, the percentage of those who are repeat clients, average docket and weekly take. Over the remainder of 2008 the appellant’s performance significantly improved but at the relevant meetings, the latest being February 2009, she was being urged to become professionally involved with her clients and her client request percentage at 55% was still in need of improvement. However, her performance over the period 13 April 2009 to 30 May 2009, which was discussed at a meeting on 4 June 2009, the number of weekly clients apart, her other KPIs were well down and her client request percentage was back down to 42%, even though she was eight months into the programme by this time. SM issued the appellant with a verbal counselling and indicated that her progress would be assessed again eight weeks later and if there had been no significant improvement he would have to invoke the disciplinary procedure. The appellant did not raise any objection to this.
At the meeting on 8 August 2009 SM outlined the appellant’s KPI averages over each of the previous 8 weeks and as there were few positives in the statistics it was agreed to follow each up again 8 weeks later and she was informed that no disciplinary action was being taken at that time. Thereafter, performance improvement meetings continued around every eight weeks. While her client number was good her client request percentages were well below the expected rate. At some stage SM asked the appellant to move to a more central part of the salon as she would be in a less isolated position and it might be better for her.
In February 2010 the claimant was taken off the performanceimprovement plan although her weekly average docket and client request percentage were below target but it was felt that she was moving in the right direction and SM wanted her to focus on her client request percentage. At her annual appraisal that month the appellant acknowledged that she needed to improve on her consultations and client request percentage. In his letter dated 23 February 2010, confirming matters discussed at the 4 February meeting SM again confirmed to the claimant that he was very pleased with her performance and that she had been was taken off the performance improvement plan.
In August 2010 SM invited the appellant to a meeting with SM and herself on 19 August 2010about her lack of progression over the previous six months as her average dockets and request client percentages were not reaching target. The area managerdid not have much contact with the appellant prior to this but from discussions with SM and on looking at overall performances she could see that she had deteriorated, on all counts, over a period of time. At their meeting the appellant had no idea how she might be helped so they suggested colour training and a communication course to help her performance. The area manager wrote to the appellant on 25 August outlining in general terms the issues discussed and reminding her that if no improvement was made she would be put back on a performance improvement plan, which could lead to disciplinary action. The appellant did a three-day colouring course beginning on 30 August 2010 and loved it but she was absent on certified sick leave due to stress related illness 13 September 2010 until 6 October 2010. Two days later, on 8 October 2010, she was again absent on certified sick leave for the same reason.
The area manager arranged to meet the appellant on 8 November 2010 to discuss her absence from work and to ascertain what was causing her stress. The appellant indicated that she was stressed by the performance improvement plan and how the manager was handled it. The area manager offered the appellant a transfer to another salon or a return to work on shorter hours if it would help her but the appellant was not ready to discuss her return to work at this time. The appellant was unsure as to what she wanted and the area manager suggested that they talk again a fortnight later. The appellant did not make contact. The area manager advised the HR generalist (HRA) of the conversation.
As the appellant had not made any further contact HRA wrote to the appellant on 8 December 2010 reminding her that at the meeting a month earlier she had attributed her stress to work and was not ready to return to work at that time. In her letter HRA explained about the respondent’s grievance policy and enclosed a copy thereof and asked the appellant to advise her on her return to work date. HRA also asked that all medical certificates be sent to her. Nothing was heard from the appellant and HRA wrote to her again on 15 March 2011. In her reply the appellant referred to a letter of complaint she had sent to her (HRA) on 16December 2010 but had not received a reply and asked that her grievance therein be addressed. She also indicated that she could not give a return to work date. HRA had not received the letter and sought copy. Under cover letter dated 10 April 2011, the appellant forwarded a copy of her letter of grievance dated16 December to HRA. The main points being:
- In HRA’s letter of 8 December 2010 there was no reference to the case put forward by her at the meeting on that day and she felt that no progress was made at the meeting.
- She felt that the area manager had been fully advised of the reasons for her stress prior to the meeting as the appellant had already informed SM.
- Her doctor had diagnosed work related stress and anxiety but rather than go on prescribed medication her doctor had referred her to a counsellor with whom she was having weekly sessions and who felt that her return to work would be detrimental to her mental health at this stage of her treatment.
- Being the longest serving employee, with 15 years’ service, she is an asset to the respondent but over the previous two years her position and status within the company had been undermined.
- Her situation was not being handled in a manner likely to resolve her issues.
- She had not received the company’s grievance procedure prior to the copy sent on 8 December.
- She indicated that she was willing to engage in a meaningful process with a positive objective.
AM’s position was that her recollection of the meeting was different.
In response HRA suggested a meeting with the appellant where they could discuss the matter with a view to getting her back to work but she appreciated that the appellant might prefer to meet when her doctor deemed her fit to return to work. HRA again sent a copy of the grievance procedures.
A meeting was scheduled for 16 May 2011 and it was attended by HRA, HRB, the appellant and her friend. The purpose of the meeting was to discuss the appellant’s absence and to get her back to work. The appellant did not want to go down the informal route of the grievance procedure to resolve her issues. She indicated that she never wanted to speak to SM again. She did not know if she could return to work as her confidence was gone. The options of working in another salon or working reduced hours were again raised as a possibility for the appellant. Her friend stated that the appellant was not being un-cooperative but that she was in a low place. The appellant felt the manager had bullied her out of work by putting her on the performance improvement plan and having moved her station in the salon but she was afraid to raise her concerns with him and did not know who to contact. The appellant informed HRA & HRB that she did not feel any better at the end of the meeting. HRA made clear that she was not looking for a definite solution from the appellant at this meeting. The meeting ended with an understanding that the appellant was not in a position to make any decisions regarding her return to work. She undertook to continue sending in her medical certificates and make contact with HRA by 16 June to let them know “where she was at”.
HRA sent a note of the meeting to the appellant on 23 May and again advised her of the grievance policy and enclosed the bullying and harassment policy, urging her to use them if she felt it was appropriate. She also advised the appellant of the company’s decision to have her examined by the company doctor in order to ascertain her fitness to return to work or even her fitness to partake in the process. The appellant did not attend the company doctor and tendered her resignation by letter dated 27 May 2011, on grounds of work related stress. In her letter she complained that the company had taken no steps to deal with her complaint of intimidation and bullying by the manager who had deliberately set out to undermine her position and status and self-confidence.
HRA wrote on1 June, 16 June and June 29 asking the appellant to reconsider her resignation and in her first letter set out the steps taken by the respondent since 2 November 2010 to resolve the issues and advises her to consider using the company’s grievance & bullying and harassment procedure. She wrote again asking the appellant to reconsider and giving her seven days to do so. NB wrote again a detailed response to all the concerns raised by the appellant, again asking her to re-consider. She received no reply. On 19 July the respondent wrote to the appellant accepting her resignation. The respondent’s position was that the appellant was not treated differently to any other employee and no disciplinary sanction had been imposed on her.
Determination:
In a case of constructive dismissal the burden of proof is on the appellant to show that because of the conduct of the employer she was entitled to or it was reasonable for her to terminate her contract of employment with her employer.
There was no evidence adduced to show that the targets required of the appellant were unreasonably high or exceeded those expected of the other senior stylists in the salon. An employer is entitled to require reasonable targets and monitor performance in a reasonable manner and doing so does not constitute bullying or intimidation.
The Tribunal accepts that the appellant was in a vulnerable state of mind. While the medical certificates submitted to the respondent state that the appellant was suffering from stress related illness there was no medical evidence to the effect that the stress was work related.
The claimant’s evidence was that the stress she suffered was work related and was caused by the performance improvement plan and the constant supervision. However, the appellant had been taken off the performance improvement plan in February 2010 and her assertions to the contrary are mistaken as is clear from the respondent’s communications to her (SM’s letter of 23 February 2010 and the area manager’s letter of 25 August 2010). While the Tribunal notes that in mid-August 2010 the claimant’s performance is again an issue, the appellant at that time took up the respondent’s suggestion to do a three-day course to improve her performance and she enjoyed it. Thereafter, she only worked a few days.
Despite the encouragement of HRA, the appellant neither availed of the informal grievance procedure to resolve her issues nor utilised the bullying and harassment policy. Furthermore, the respondent offered the appellant reduced hours and the option of working in one of its others salons but the appellant did not avail of any of these. In addition, even though it was subsequent to her resignation, the respondent acted reasonably in offering a number of times to reconsider her resignation.
For the above reasons the Tribunal cannot accept that the employer’s conduct was such that that the appellant was either entitled to or that it was reasonable for her within the meaning of the Unfair Dismissals Acts, 1977 to 2007, to terminate her contract of employment with the respondent.
Accordingly the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)