ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000706

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 10/02/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint) to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The Complainant made a verbal presentation of her case at the hearing and subsequently forwarded written details summarised as follows;

1. The complainant commenced employment with the respondent in or around May 2003 as Information Officer. The complainant was employed under a Contract of Indefinite Duration dated the 1 September 2010, signed by the complainant on 4 November 2010 (hereinafter referred to as “the contract of employment”). The complainant requested some amendments to the contract and experienced difficulties regarding same.
2. The contract of employment provided that complainant was contracted for 35 hours per week. The contract outlined that the complainant report to a “Principal, Centre Manager, Line Manager, Director of School/College/Centre or other person as determined by the Chief Executive Officer”. The contract further provided that the complainant “carry out the duties assigned as appropriate to the post as per Job Description and any other duties as assigned from time to time by the Chief Executive Officer and/or his/her deputed officer.”
3. The role and job description of Information Officer was as referred to in Clause 8 of her Contract of Employment and by reference to a Department of Education circular 0015/2007 and further in accordance with custom and practice since the complainant’s commencement of employment to the date of her grievance which involved, inter alia, the provision of administrative support; marketing and provision of promotional material to members of the public; collating and updating all materials related to the respondent’s programmes for distribution; maintenance of various databases ancillary to the provision of the respondent’s services; attendance at various centres to offer information and promote the respondent’s programmes to members of the public etc.
4. The Employer had published a policy entitled “Time in Lieu Policy”. This provided that time in lieu was defined as time off which staff were allowed to take in lieu of hours worked beyond the normal working day. The scheme was managed and implemented by the staff member’s line manager.
5. In the complainant’s capacity as Information Officer, she reported to one Ms. M D, Adult Guidance Co-ordinator, who was based in the same location.
6. The complainant earned a net fortnightly salary €1,230.00. Clause 14 of the Contract of Employment hereinbefore recited provides that sick pay will be allowed during absence due to illness for a period or periods in aggregate that do not exceed 365 days in any four consecutive years.
7. The complainant was on sick leave from December 2013 to February 2015 at such time she was certified fit to return to work by her GP. However, due to the lack of intervention by management the complainant refused to return to work in an “unsafe” environment and resigned from her post in July 2015.
8. Clause 30 of the Contract of Employment outlined that the employee had the right of redress by way of the grievance procedure. Appended to the contract is the nationally agreed grievance procedure, agreed between the representative body of the respondent and the trade unions. This provided for a four-stage grievance procedure and was adopted by the respondent on the 3^rd May 2010, updated on Saturday 16^th July 2011.
9. From the commencement of the complainant’s employment as Information Officer with the respondent up to May 2011 the complainant had an excellent working relationship with her line manager, Ms M D and dedicated herself in the discharge and performance of her duties as Information Officer with the respondent with the upmost due care and diligence.
10. During the course of the complainant’s employment, she returned from holiday on the 11^th May 2011, wherein she was advised by her line manager that her Time Off In Lieu sheets had “landed on the wrong desk” and (TOIL) entitlements were no longer available to her and her travel expenses to “out off office” related matters in discharge of her duties were to be curtailed.” Following this the complainant noted that her duties were gradually being reduced to the extent that the complainant was attending to basic administrative functions only, rendering the value of her role as an Information Officer significantly diminished. The complainant sought to raise these issues directly with the then Acting CEO, Ms. E N and a meeting was convened on the 20^th June 2011. These actions had an adverse impact on the complainant’s working relationships with management and colleagues resulting in the complainant suffering significant stress, anxiety and feelings of isolation cumulating in her having to take sick leave on account of stress from the 28^th June 2011 to the 26^th September 2011.
11. Certifying the complainant as fit to return to employment, Medmark Occupational Healthcare, engaged by the Employer outlined that the nature of the sickness was “stress” and related to the conditions of employment. Dr F G recommended that the complainant’s issues of concern be managed and addressed on her return to the workplace.
12. The complainant was advised by letter from the ACEO to report to her in Head Office prior to returning to her place of work. At this meeting with Ms. N, ACEO and Ms. M C, HR Dept., held on 26^th September 2011, the complainant was informed by the ACEO that Time Off In Lieu (TOIL) was “effectively gone and she had informed the staff of this”. Colleagues, however, subsequently informed the complainant that they continued to received TOIL. The ACEO’s notes of this meeting further state that the complainant’s travel had been subject to an internal audit and her duties were mainly office based. The notes further stated that the complainant’s contract was for 35 hours leaving a shortfall of 2.5 hours per week. There continued to be confusion around the working hours of the complainant and a further meeting took place in January 2013 However, the recommendation made by Medmark that the “complainant’s issues of concern be managed and addressed on her return to the workplace” was completely ignored by the ACEO.
13. The complainant later complained that on her return to work, she felt victimised and continued to feel increasingly isolated, stripped of duties and less involved in the team. Her relationship with her line manager, Ms M D deteriorated and there had been no follow-up to her informal grievance meeting. The line manager and the receptionist had assumed the duties of the Information Officer. The complainant complained that the employment was unsafe for her to work in.
14. The complainant initiated formal internal grievance procedures on the 16^th March 2012 in relation to grievances arising from, inter alia, unilateral change in terms of employment and nature of her role, incidents of bullying and victimisation to include, but not strictly limited to, incidents of isolation; undermining behaviour; stripping off duties; excessive monitoring of work; manipulation of job content; reduction of annual leave and differential treatment regarding TOIL as hereinbefore recited.
15. Following a meeting to consider the grievance, it was agreed to implement weekly meetings with the complainant and to seek further information from the Acting CEO in relation to TOIL and the internal audit giving rise to removal of travel. An agreement was drafted by the Guidance Co-ordinator, which requested that she follow up matters regarding TOIL and travel with the ACEO.
16. The complainant certified as unfit for work on the basis of work-related stress and was on sick leave from the 4^th May to the 4^th July 2012. Medmark certified the stress as acute stress.
17. On the 26^th June 2012, while still on sick leave, the complainant attended Stage 2 grievance meeting with Ms M C and Ms. S, HR Department. The complainant was accompanied by a Union Representative who prepared a note of the meeting. The note outlined the background to the matter. At the conclusion of the meeting, it was proposed that the complainant engage in a mediation process with the Acting CEO and the Guidance Co-ordinator.
18. The mediation was convened by the Labour Relations Commission on the 6^th September 2012. The Acting CEO and the Guidance Co-ordinator attended on behalf of the respondent. The parties agreed a draft agreement regarding the complainant’s hours of work, a procedure regarding scheduling presentations and planning meetings with the Guidance Co-ordinator. Following the meeting, there was an exchange of emails regarding the wording of the agreement however the mediated agreement did not materialise and the complainant proceeded to advance the matter by way of the formal grievance procedures.
19. In or around the 24^th October 2012 the complainant invoked the Employer’s Dignity at Work Policy. In the complaint, the complainant outlined that the managerial practice adopted by the Acting CEO had caused the complainant to become isolated and intimidated and produced an unsafe working environment. The complainant complained of the behaviour of the Acting CEO since the completion of Stages 1 and 2 of the Grievance Procedure.
20. Stage 3 of the Grievance Procedure was implemented and a meeting convened under the terms thereof. At this meeting, the parties reached an agreement regarding duties and procedures. It was agreed that mediation might help improve the working relationship between the complainant and the Guidance Co-ordinator. In advance of the proposed mediation, the Acting CEO made a submission directly to the nominated mediator, Mr S S which was both inaccurate and provocative. The contents of the submission were challenged by the complainant’s union representative and an apology, in the form of a letter dated 2^nd May 2013 issued from the Acting CEO to the complainant. An undertaking was delivered by the respondent that a “Wellness at Work” would be delivered to all staff at her work location and that complainant’s role would be clarified to all. This was arranged by Ms. T but was subsequently cancelled by Ms. N prior to commencement.
21. In July 2013, there was an amalgamation of two organisations to form the current respondent organisation. The Complainant attended a meeting with the Guidance Co-ordinator and the CEO, Mr D L, of the newly-merged respondent. The CEO suggested that he receive monthly reports of the work undertaken by complainant and the Guidance Counsellor. Further meetings took place in 2013 between the complainant and the Guidance Counsellor and minutes of these meetings were emailed to the Chief Executive.
22. The complainant continued to experience difficulties within her workplace with the respondent on the terms of her initial grievance from which she continued to suffer occupational stress and removed herself from the toxic environment in December 2013. The complainant continued on sick leave. The dispute was subject to mediation under the guise of the Labour Relations Commission. It had been agreed that the complainant would resume employment on the 1^st September 2014, on the terms agreed between the parties, but this did not occur following a failure of the respondent to implement certain terms of the agreement within the time prescribed.   Meetings were arranged with Management in August and October 2014 which led to a facilitated meeting with Ms M D on November 4^th 2014. Ms M D removed herself from the meeting following the complainant’s reference to a book entitled “People of the Lie” by M. Scott Peck.
23. The complainant had endured three lengthy certified absences from work, due to workplace stress and ill-health caused by her workplace environment and the complainant was anxious to ensure that she could resume her employment in confidence that her workplace would not bring about a fourth period of sick leave and renewed injury to her and, therefore, any proposed re-insertion of the complainant into the workplace of the respondent should not be into a fractured working environment that has resulted in the complainant’s withdrawal from the workplace.
24. The complainant attended a Rights Commissioner hearing on 2^nd June 2015 accompanied by her solicitor which concluded with the Rights Commissioner to revert to the complainant’s solicitor with the option of an alternative role with the respondent or a severance package, however, this did not materialise.
25. The complainant met with the Chief Executive of the respondent, Mr. D L, on 6th July 2015. At this meeting she was informed by Mr. D L that he would consider the option of her reporting to another staff member but he had not decided who this would be. The complainant was later requested to return to her employment reporting to Ms. D.
26. Following her solicitors withdrawal from her case the complainant continued to pursue the results of the Rights Commissioner hearing directly with the then LRC to no avail. In October 2015 the complainant withdrew from the services of the WRC in the hopes that the respondent would enter into negotiations directly with herself.
27. The representative body of the respondent and the relevant Trade Unions have adopted the ‘Bullying Prevention Policy – Complaint procedure for staff’, for implementation on the ^1st September 2013 and provides for formal and informal procedures and an appeals process in relation to incidents of bullying. It also provides for investigation and following the investigation, whether or not the employer will accept the findings of the investigation. Where the employer rejects the findings of the investigation, the policy contemplates referral to a third party dispute resolution process, subject to the agreement of both parties. The bullying policy provides for formal and informal procedures and an appeals process. It also provides for investigation and following the investigation, whether or not the employer will accept the findings of the investigation. Where the employer rejects the findings of the investigation, the policy contemplates referral to a third party dispute resolution process, subject to the agreement of both parties. The bullying policy uses the definition of bullying” provided by the HSA Code of Practice, as follows: “repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour in this definition may be an affront to dignity but as a once-off incident is not considered to be bullying.”
28. The Safety, Health and Welfare at Work Act, 2005 imposes a duty on employers to provide for the safety, health and welfare at work of their employees. Section 8(2) imposes a duty on employers to manage and conduct “work activities in such a way as to prevent, so far as is reasonably practicable, any improper conduct or behaviour likely to put the safety, health or welfare at work of his or her employees at risk.” The Health and Safety Authority issued a Code of Practice regarding bullying at work. The Code provides “practical guidance” to employers and employees regarding bullying in the workplace and outlines that bullying can be carried out by supervisors, managers, subordinates and others. The Code makes specific reference to the general obligation of employers to carry out a risk assessment of hazards in the workplace, and where bullying is identified as a hazard, to include it in the Safety Statement. The HSA Code provides a non-exhaustive list of examples of bullying, including exclusion with negative consequences, being treated less favourably than others, intrusion, undermining behaviour and excessive monitoring in the workplace. It suggests that amongst the factors that may signal the onset of bullying behaviour include changes in the workplace, for example a new manager or supervisor.

Respondent’s Submission and Presentation:

1. Preliminary Objection 

The procedures to be followed in claims where the onus of proof rests with the Complainant are laid out in the ‘Procedure in the Investigation and Adjudication of Employment and Equality Complaints’ published by the WRC. Section 5 states that when submitting the form ‘a clear statement setting out the details of the complaint will be required from the complainant’. It is also states that ‘if no statement is received from the complainant in these cases the Director General may decide to dismiss that complaint for non-pursuit’. The Complaint Form submitted by the Complainant simply states ‘I had a Rights Commissioner Hearing on June 2^nd 2015. I have not received any decision from this hearing. I am advised by the WRC to contact the respondent regarding an internal investigation and the respondents are advising me that they have not as yet received a report from the Rights Commissioner’.

2. The complainant withdrew her above mentioned complaint by way of an email to the LRC on 21^st September 2015. The hearing above predates the date of termination of the complainant’s employment and as such it follows that no statement has been made by the Complainant regarding the termination of her employment. It is submitted that, in circumstances where no statement has been received or at the very least no statement outlining the grounds for the complaint the matter should be dismissed.

3. The background to the issue in summary is as follows;

In 2011, during a routine audit, the Internal Auditor commented on the significant amount of travel being claimed by the complainant, as opposed to other IOs employed in other similar organisations. The then Acting CEO, sought a review of the complainant’s travel patterns. The complainant has alleged that the Internal Auditor was directed to her travel claims, which is denied by the respondent. A random selection of 20 staff members were selected.

A stage one grievance was lodged identifying 5 grievances;

• Changes in her Role and Duties
• Not being included in the planning of the Service
• Different treatment regarding TOIL
• Provision of an incorrect circular
• Reduction in Annual Leave.

4. A meeting was held with the complainant and her union representative on 4^th April at which a resolution was agreed.

5. A stage two grievance was submitted on 11^th May 2012 as follows;

• Different treatment regarding TOIL
• Not being included in the planning of the Service

6. A meeting was held on 26^th June 2012 wherein it was agreed to engage in mediation to be facilitated by the LRC. An agreement was subsequently entered into by the parties. The complainant advised the LRC that she was rejecting the agreement.

7. On 7^th November 2015 the complainant advised that she wished to invoked the Dignity at Work Policy with regard to ‘ongoing issues since 2011’. The union advised on 26^th November that the complainant wished to have her grievance parked. On 22 January 2013 the union requested a Stage 3 Grievance. A meeting was held on 13^th February and the following was agreed;

• The complainant’s duties would be restored at the direction of her Line Manager
• Her Line Manager would be given more discretion as to the running of the service
• Mediation would take place to improve the working conditions between the complainant and her Line Manager.

8. The mediation took place on 6^th March. However it broke down due in part to the complainant’s belief that a summary of the issues provided to the mediator by the former Acting CEO made inferences about her and sought to discredit her integrity and professionalism. Following the meeting the respondent made numerous attempts to resolve the complainant’s issues. However, she commenced sick leave in December 2013. On 25^th March the respondent wrote to the complainant advising that she could invoke stage 4 of the Grievance procedure or engage in mediation services of the LCR. The respondent also referred her to its EAP. On 24^th April the complainant agreed to mediation. On 13^th June she lodged an IR dispute claim against the respondent. On 14^th July mediation was held and a successful resolution obtained and a return to work date of September 14. Following further meetings a plan was put in place for the complainant’s return to work and a facilitation meeting was scheduled for 4^th November. An independent facilitator was provided for the meeting. However following a number of disparaging comments made by the complainant in relation to her Line Manager, the latter felt it necessary to leave. On 13^th November the respondent confirmed its willingness to return to the Rights Commissioner in an effort to resolve matters.

9. Further emails were exchanged and the complainant advised that she would only return to work if an alternative role was provided. The complainant also stated that she was not interested in proceeding with a Stage 4 grievance.

10. The respondent requested the complainant to return to work in January 2015. The complainant stated that she would only return if she received a meeting with the Chief Executive (CE). The acting head of HR offered to meet her and also it was explained that the CE would meet her the next time he was in Roscommon. This was not sufficient for the complainant and she submitted her resignation on 13^th February. The respondent immediately asked her to reconsider but she said she would only withdraw her resignation if she was offered an alternative position to which the respondent replied that this was not possible due to the public sector moratorium on recruitment. By letter dated 18^th March the complainant asked to withdraw her resignation. A further attempt was made to resolve matters at a Rights Commissioner hearing on 2^nd June 2015 at which the respondent was asked to give further consideration to an alternative position or a severance package, neither of which proved feasible.

11. In a further effort to resolve matters the CE met with the complainant on 6^th July 2015 at which he explained that on her return to work a change of line manager would be facilitated. The complainant advised that she had moved on and was not willing to come back. She submitted her resignation again on 31^st July 2015. By letter dated 4^th August she confirmed that she had secured alternative employment.

12. It is submitted on behalf of the respondent that it was in no way unreasonable in its behaviour towards the employee. The essential cause of her resignation was that she was being asked to comply with her existing terms and conditions of employment, which terms she disputed.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Issues for Decision:

The issue for decision is whether the complainant was unfairly dismissed and, if so, the appropriate redress.

Legislation involved and requirements of legislation:

Section 1 of the Unfair Dismissals Acts 1977 defines a dismissal as including:

‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,’

Where constructive dismissal is claimed the initial burden is on the complainant to show that a dismissal actually took place. There are two tests, either or both of which may be invoked by an employee.

In the first test - the “contract” test - the employee may argue entitlement to terminate the contract. The second test – the “reasonableness” test - applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.

Not every breach of contract will give rise to such repudiation. It must be a breach of an essential term which goes to the root of the contract. There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then. What is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.

Conclusions:

Preliminary Issue.

The respondent has submitted that, in circumstances where no statement has been received outlining the grounds for the complaint the matter should be dismissed. The reason for looking for statements /submissions in advance is to ensure that the parties and the Adjudication Officer have all the necessary information prior to the hearing and that neither party is placed at a disadvantage. In this instance it is clear from the submission received on its behalf, that the respondent was fully familiar with the issues behind the complaint. Furthermore, the respondent had the opportunity after the hearing to submit any additional relevant material and to respond to the additional material received from the complainant. I do not believe, therefore, that the respondent was disadvantaged by the failure of the complainant to provide a written statement in advance.

The complainant contends that she was unfairly dismissed. There is no evidence that she was formally dismissed and therefore the question is whether or not she was constructively dismissed. It is therefore necessary to consider whether the conduct of the respondent amounted to a breach of an essential term of the contract and/or secondly, whether the conduct of the respondent was so unreasonable that the Complainant had no alternative but to tender her resignation.

The original issues of concern to the complainant related to hours of work, access to TOIL, reduction in Travel/Mileage and Subsistence, and reduction in her duties. The allegation of bullying was subsequently added.

There is an express term in the complainant’s contract of employment stating that her hours of work would be 35 per week. Such an express term overrides any implied term claimed under custom and practice. It was therefore reasonable for the respondent to insist on the full contracted hours being worked.

The respondent’s procedure for TOIL makes it clear that TOIL is not to be confused with Flexible Working and that it is ‘designed to meet the need to be responsive in delivering a quality service’. It is therefore not at the discretion of the post holder to unilaterally determine what are the appropriate times to provide the service. It is essentially a matter for management to satisfy themselves as to the best utilisation of resources in that regard and therefore the complainant had no entitlement to insist on scheduling her activities to take place outside of normal office hours.

In relation to travel expenses it is a recognised function of management to ensure that this is only incurred when necessary. The claimant’s contract of employment states that ‘Travelling and subsistence allowance will be paid in respect of necessary journeys authorised by management’. It is therefore open to management to reduce the amount of money spent on such activity through curtailing travel on business.

Accordingly, I see no evidence of any breach of an essential term of the complainant’s contract of employment.

No evidence was provided that any change in the role of the complainant went to the root of the contract. No evidence of bullying, or failure to provide adequate procedures for the investigation of such complaints was presented.

The respondent attempted in good faith to deal with the complainant’s issues on numerous occasions and in multiple fora, both in use of the available internal procedures, external mediation/facilitation and informal contacts.

I see no evidence of unreasonable behaviour of the nature required to consider that the complainant was entitled to terminate her employment or that it was intolerable by any objective standard.

Decision:

I have investigated the above complainant and make the following decision in accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that

• the Complainant was not unfairly dismissed.

Dated:   28^th April 2016