EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD67/2014
CLAIM OF:
Elaine Byrne
against
Horwath Bastow Charleston Wealth Management Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr. J. O'Neill
Mr F. Keoghan
heard this claim at Dublin on 6th February and 23rd, 25th March and 16th June 2015
Representation:
Claimant : Ms Fiona Gallagher B L instructed by
CM Haughey, Solicitors, Christchurch Hall, High Street, Dublin2
Respondent : Mr Ray Ryan B L instructed by
O'Shea Barry, Solicitors, 5 Fitzwilliam Place, Dublin 2
The determination of the Tribunal was as follows:
Claimant’s Case
Prior to her commencement of employment with the respondent in the autumn of 2007 as a financial planning consultant the claimant had acquired years of experience working in a number of similar enterprises. The respondent is a financial and accountancy company and the claimant was tasked with managing the financial affairs of wealthy clients.
She enjoyed her work and had no problems there up to 2011. That year the claimant noticed an increase in business as activity intensified and the pressure accelerated. Around that time she noticed that her future manager’s behaviour and approach to staff became more belligerent and intimidating especially towards a younger inexperienced colleague. When the claimant asked that manager to cease that type of conduct that manager in turn reacted aggressively towards her. Relations between them soon became and remained fractious.
In May 2012 that manager was promoted to an associate director and therefore acquired more authority and seniority than the claimant. The claimant reported to her as well as the managing director whom she regarded as the boss. That manager’s negativity towards the claimant intensified during this period. The witness highlighted an incident in August when she felt bullied, irritated and harassed by her outside working hours. This unnecessary antagonism especially during a family event was shocking and threatening. The claimant told the Tribunal that as a result of this and other incidents she felt belittled, downgraded and humiliated.
On her return to work in late August the claimant contacted a partner with the respondent and officially complained about the manager’s treatment of her. That led to her being contacted by the managing director by email on 30 August and a person from the human resource section. At a meeting with the latter the claimant detailed her grievances against her manager and the way she was being treated by her. She explained how it was becoming unbearable to go to work knowing she had to engage with that person. Following another meeting a human resource person issued a memorandum on 3 September pertaining to the relationship between the claimant and her manager.
To the claimant’s dismay the outcome to her situation from the company was that she continues to report to that bullying manager. She felt “crushed” at that conclusion and concluded it was now pointless in making complaints. The claimant “struggled on” for the next twelve months and her efforts to broach and resolve issues with that manager were rebuffed. It was clear to the claimant that this manager was annoyed at her due to her earlier complaints. The respondent did not enquire or further address that relationship in that twelve month period. She had no recollection of meeting the managing director in April 2013 to address her concerns and added that such a meeting did not occur. During that period the claimant did not complain that she had to directly report to this manager.
To the claimant’s surprise her manager could at times be supportive towards her in the course of her work. On at least one occasion they socialised together and she described a particular outing as pleasant.
The claimant cited at least two more instances when she was the victim of this manager’s wrath. These concerned missing files, the issuing of a discount, and a client account. Towards the end of September 2013 the claimant was subjected to a tirade of verbal abuse by this manager in an open office. She found that experience mortifying and was by that stage suffering from this ongoing abuse. The claimant’s anxiety did not lessen even during an overseas family holiday and upon her return she visited her general practitioner. She took and acted on the advice from that doctor and distanced herself from her employer and the environment there. The witness said that it was possible she had begun seeking alternative employment prior to attending her medical doctor.
On securing employment elsewhere the claimant then gave notice of her intention to resign from the company. She denied asking for a redundancy payment but was disappointed at not receiving an expected “sweetener” upon her departure. The claimant was aware of the company handbook which included sections on bullying and grievances but had lost confidence in utilising those procedures. She commented that she was a difficult person to bully but that her manager somehow achieved this.
Respondent’s Case
The first witness for the employer was the claimant’s joint manager. In October 2007 she started work in the wealth management division where the claimant was also based. At that time this witness held a subordinate position to her and both ladies reported to the managing director. In November 2009 the witness secured promotion acquiring the title of consultant. That elevation placed her on the same administrative level as the claimant. The witness told the tribunal that she enjoyed a close and strong working relationship with the claimant as they occupied an open office. There were no difficulties or disharmony between them and their good working relationship extended to socialising together. While the witness had no recall of an incident with a trainee she did not accept she was aggressive towards her. Besides, the claimant never approached her on that issue.
In May 2012 the witness was appointed an associate director. That new status had the effect inter alia of now having managerial control of the claimant. Such a move did negatively impact on the relationship between her and the claimant. That deterioration came to the fore in late August 2012 as these colleagues verbally clashed over a work issue. This manager was annoyed and frustrated at the claimant as in her view she left the office to commence annual leave without completing certain assigned work. In her irritated haste she texted the claimant what she described as awful words. In a subsequent meeting with the claimant in early September the claimant accepted her behaviour was inappropriate and apologised to her. She explained her behaviour on pressure of work and added that her gesture to her while on the phone was not intended to be demeaning.
As a consequence of this incident and other factors a clearer organisational structure was adopted within the office and division. Contrary to the claimant’s assertion that she was to exclusively report to her it was agreed that she was to jointly report to the managing director and the witness. By that stage the witness was aware that the claimant had alleged bullying against her. Notwithstanding that allegation the witness and claimant continued to closely work together. The manager commented that on several occasions she was particularly supportive of the claimant and that they occasionally socialised after work. By the summer of 2013 and in the absence of other team members this witness described her working relationship as excellent.
References were made to exchanges between these two women in September 2013 again relating to work issues. The manager was adamant she was not hostile towards the claimant. On the contrary the claimant was aggressive towards her. This witness insisted that she had never bullied, belittled or in any way humiliated the claimant and apart from the texts episodes she had not even had a hint that the claimant had continuing complaints and grievances against her.
The managing director interviewed and appointed the claimant as a member of staff in the wealth management team in September 2007. Apart from this manager and the claimant the team consisted of two others one of whom was the previous witness. This director was the boss of that team. He told the tribunal that he always had appraisals with staff and never neglected to take handwritten notes at all meetings he attended with them. He described the promotion in May 2012 of the previous witness as sensitive considering she would now be senior to the claimant. The claimant expressed disappointment at that development. From that time onwards this director sensed deterioration in the relationship between these female colleagues.
Acting on a report from another colleague this witness emailed the claimant on 30 August 2012. He took the bullying complaint seriously and sought to address and resolve matters within the team. At the conclusion of meetings a decision was reached which appeared agreeable to all concerned. The claimant accepted an apology from her manager about those unnecessary and gratuitous text messages. During the course of those meeting in early September the claimant stated that the texts incident was not an isolated event regarding harassment from her manager. However, when pressed to give more instances of that behaviour the claimant was silent.
The witness was satisfied that by the conclusion of these meetings that the issue of the text messages had been resolved and was now closed. At no stage did the claimant cease reporting to him and the claimant did not query this. This director constantly monitored the working relationship between these ladies for the rest of that year. Up to November 2013 this director had not received any complaints from the claimant regarding her working environment. When he received notice from the claimant of her intention to resign the director met her to discuss her situation. While he did not want to lose her the director was unable to give her the job guarantees she sought.
An ordinary partner in the firm who acted as a human resource person stated that the respondent had an anti-bullying and grievance procedure in place. This was available to all staff. The claimant never invoked the formal grievance procedure as her complaint against her manager regarding the text messaging was conducted and concluded using the informal process. Subsequent to September 2012 this witness did not receive any more complaints from the claimant.
A former colleague of the claimant who occupied the same floor as her never observed any unpleasantness between the claimant and her manager.
Determination
In constructive dismissal cases the onus is placed on the Claimant to show that her conditions and treatment in the workplace by the Respondent were so intolerable and intractable that she had no other reasonable option but to involuntary resign. Section 1 of the Unfair Dismissals Act as amended.
This Tribunal finds that:
1/This onus as outlined has not been discharged by the Claimant in this case.
Case of Martin v Xtra Vision Ltd. UD265/2006.
2/ Before embarking on this course of action it is important that the Claimant exhaust all other avenues, in particular any existing “harassment” or “grievance” procedures. This was not done.
Case of Carthy v Clyde Investments UD 265//2006.
3/ The burden of proof in such cases is an onerous one, in that the Claimant must prove not only that the Respondent’s behaviour was unreasonable but also that the Claimant’s response in resigning was reasonable. Case of Healy v Credit Card Systems Ireland Ltd, UD 148/2003.
4/ At all relevant times the behaviour of the Respondent was reasonable.
5/ The Respondent made reasonable and genuine attempts to resolve and defuse the situation.
6/ The version of events and related circumstances in this case as outlined by the Respondent was more credible and acceptable to the Tribunal.
7/ While the Claimant may have a grievance to a limited extent, it was not such as to justify or amount to constructive dismissal.
Accordingly the Tribunal cannot allow her case for constructive dismissal to succeed under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)