AD1697

The Appellant was employed on a full-time basis at the Respondent’s Carlow outlet since January 2008 as Chief Cashier. By letter dated 11 July 2013, the Appellant raised a formal complaint against the then store manager arising from a series of interactions between them in or around 24 June 2013 in connection with the whereabouts of discount vouchers for the store. The Appellant went out on sick leave at this time citing work-related stress. She resigned her employment by letter dated 22 December 2015. The Appellant did not return to work in the intervening period.

The Appellant sought advice from a solicitor in relation to the events of June 2013 and her subsequent absence on certified sick leave. Through her solicitor, she made a formal request by letter dated 15 August 2013 for a severance package as the Appellant did not see herself returning to work for the Respondent due to’ health reasons’ i.e. ‘work-related stress’.

Investigation of Complaint

In the meantime, the Respondent had written directly to the Appellant enclosing a copy of its Dignity at Work Policy and advising her of its intention to investigate the complaint outlined in her letter of 11 July 2013 in accordance with the procedures provided for in the aforementioned policy.

The Appellant’s certified absence continued and her solicitors wrote to the Respondent on 3 October 2013 to state that there was, in their view, no impediment to the Respondent carrying out its investigation into their client’s complaints, notwithstanding the Appellant’s absence from the workplace. They enclosed a letter from the Appellant’s GP confirming that she was fit to participate in a ‘grievance procedure’ and threatening legal proceedings should the Respondent fail to carry out the investigation. The Respondent appointed one of its Executive Area Managers to investigate the Appellant’s complaints and he made a number of unsuccessful efforts during October 2013 to convene a meeting with the Respondent. The Appellant was invited to be accompanied at the proposed meetings by a work colleague, as is provided for in the Respondent’s Dignity at Work Policy. The Appellant advised through her solicitors by letter dated 20 November 2013 that her “work colleagues [were] not in a position to participate in the investigation”.

The aforementioned Executive Area Manager left the Respondent’s employment in or around November 2013 and the responsibility for the investigation of the Appellant’s complaint was assigned to a HR Business Partner. The Appellant attended an investigation meeting on 30 January 2014. The Respondent issued a letter dated 13 February 2014 detailing the outcome of the investigation and proposing a range to options whereby the Appellant’s return to work could be facilitated and any outstanding issues between her and her manager could be mediated.

The Appellant wrote directly to the Respondent on 28 March 2014 requesting that a new and independent investigation into her complaint be carried out, as in her view, the investigation of 30 January 2014 had not been conducted in accordance with fair procedures. The Appellant also stated that she did not accept that she should have to meet with her manager to resolve any outstanding matters that had formed part of her initial grievance.

The Respondent appointed a second Executive Area Manager to conduct a fresh investigation of the Appellant’s complaints. The latter met with the Appellant on 4 September 2014 and subsequently with the Store Manager against whom the Appellant had complained. He also met with other colleagues who had been named as witnesses to the event which gave rise to the initial complaint. The investigator issued his report on 14 October 2014. He found as follows:

• 
  “Having questioned both [A & B] who you indicated were both witnesses to alleged incidents of bullying and harassment neither corroborated your version of the events.

  Notwithstanding that, [the Store Manager] has accepted the incident regarding the vouchers referenced in your letter dated 28 March 2014 could have been handled in a more professional manner on his behalf.

  Following a review of all the information gathered through various meetings, I wish to inform you that there is insufficient evidence to suggest that you were the subject to bullying and harassment from [the Store Manager].”

By letter dated 20 November 2014, the Appellant submitted her resignation to the Respondent and advised that she intended to pursue a constructive dismissal claim. The Respondent replied on 24 November 2014 and requested the Appellant to reconsider her position and to await the outcome of her appeal of the investigation findings. The Appellant agreed to do so. The appeal hearing took place on 4 December 2014, as scheduled. It was conducted by the Respondent’s Operations Director. The Appellant was notified of the outcome by letter dated 15 December 2014. The appeal determined that the Appellant’s Store Manager had made inappropriate comments to her in June 2013. The report recommended that the Store Manager should make a formal apology to the Appellant. The Operations Director further recommended that the Respondent’s HR Business Partner should re-engage with the Appellant to discuss ‘all and any relocation options’.

The Appellant responded by email and letter both dated 22 December 2014 confirming her intention to resign with a view to referring a complaint to the Rights Commissioner. The Respondent wrote to the Appellant by letter dated 8 January 2015 inviting her to reconsider her decision to resign and to advise her that the Store Manager against whom she had made her complaint had been relocated to another of the Respondent’s stores. The Appellant replied by email dated 19 January declining the Respondent’s invitation to reconsider her resignation to and to attend a meeting to discuss a possible return to work.

Rights Commissioner’s Recommendation

The Rights Commissioner held a hearing on 26 May 2015 to investigate the Appellant’s complaint. The Rights Commissioner states as follows in her recommendation dated 11 August 2015:

• “I find that the Company did investigate the complaint of Bullying made by the Claimant against [her Store Manager]. The investigation and appeal was [sic] conducted in accordance with the Dignity at Work Policy of the Company and in accordance with the Code of Practice S.I. No 17/2002 – Industrial Relations Act, 1990 (Code of Practice Detailing Procedures for Addressing Bullying in the Workplace) (Declaration) Order, 2002.

  Accordingly I do not find in favour of the Claimant that her complaint was not investigated in an appropriate manner.”

Post-hearing Correspondence

On 8 June 2015, the Respondent wrote to the Appellant inviting her once again to retract her resignation and inviting her to work with the Respondent to “explore all avenues to restore the working relationship”. The Appellant did not avail herself of this opportunity.

Labour Court Hearing

The Labour Court received notice of the Appellant’s appeal from the Rights Commissioner’s recommendation on 15 September 2015. A Labour Court hearing took place on 22 March 2016.

The Appellant verbally outlined to the Court the history of her dispute with the Respondent and advised the Court that she was not in a positon to return to employment with the Respondent. She was now pursuing an alternative career on a self-employed basis and continuing to attend treatment for stress-related symptoms. She also advised the Court that she had never received an apology from the Respondent.

The Respondent presented a detailed written submission to the Court outlining the steps it had taken to investigate the complaints raised by the Appellant in June 2013. The Respondent also advised the Court that it was willing to allow the Appellant to retract her resignation and to return to its employment, on a phased basis if appropriate. The Court was also informed that the Appellant’s former Store Manager was available and willing to make an apology to the Appellant.

Recommendation

Having considered in detail the parties’ written and oral submissions, the Court finds that the appeal fails. The Court is of the view that the Respondent conducted a thorough and fair investigation into the complaints raised by the Appellant in June 2013.
The Rights Commissioner’s recommendation, accordingly, stands and the appeal is dismissed.

Signed on behalf of the Labour Court




4th April, 2016______________________
CCAlan Haugh
Deputy Chairman


NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.