EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD469/2015
CLAIM OF:
Linda Harkin
-claimant
Against
Guinness Storehouse Limited
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr. L. Tobin
Mr N. Dowling
heard this claim at Dublin on 13th April 2016 and 13th June 2016 and 14th June 2016
Representation:
_______________
Claimant: Mr Diarmuid Murphy BL instructed by, Paul Ferris & Co., Solicitors, Suite 227, The Capel Building, Mary's Abbey, Capel Street, Dublin 7
Respondent: Ms Mary Fay BL instructed by, Arthur Cox, Earlsfort Centre, Earlsfort Tce, Dublin 2
This being a case of constructive dismissal it fell to the claimant to present her case first.
Claimant’s Case
The claimant gave evidence of having a good working relationship with her peers and of receiving good feedback from her supervisor in her P4G (bonus related performance review) from when she commenced in 2008 until 2013. Sometime in 2013 she received a phone call from LS who told her that someone had made a complaint against her but not to worry about it, just to be mindful or be careful of what she said to people.
The claimant was asked by a colleague in September 2014 how her P4G interview went; the colleagues had been six weeks previous. The claimant asked ML (her supervisor) about it and was told her they would do it at 3pm. Her grading was “mostly meets” requirements. ML told her that she was dreading telling her but that there was a complaint that she was harassing staff and that she had an angry face.
The claimant left the room not knowing what it was alleged she had done. She was upset and crying. She thought she would find out for herself and asked her team leader DM and JR about it but they just told her to “go back to work”.
The claimant met with CK on 4th December to try and find out who was saying what. By this time she said that she wasn’t coping and was very bad with her nerves. CK was a good boss and told her to put it behind her, to move on. The claimant collapsed that day, she couldn’t breathe, couldn’t cope and had to have her husband come to collect her. She cried for days and went to her doctor. She was prescribed with a mild dose of sedatives and was told she was suffering from extreme anxiety.
The claimant also attended the company doctor who concurred with the diagnoses from her own doctor. By February the claimant was feeling better and attended a meeting on 24th February with CK, she brought her friend TD. CK still would not tell her who had complained about her and TD asked if it was a formal complaint, they were told no, it wasn’t formal.
Following that meeting the claimant couldn’t cope and felt her dignity had been taken away. The claimant resigned by letter of the 3rd of March 2015.
The claimant’s friend (TD) who attended the meeting on the 24th of February gave evidence. TD had been an employee representative when he worked for the respondent. At this meeting CK said she was trying to find a way for the claimant to return to work. She suggested a change of station, a change in management and/or mediation. The claimant felt mediation was not an option as she did not want to be in the same room as ML, her supervisor. CK told them at the meeting that the two complaints were informal, made by 2 staff who no longer worked there. No complaint details were outlined, CK was trying to move forward and get the claimant back to work.
Respondent’s Case
The claimant received a ‘mostly meets’ in her P4G review in 2014, she also received this score in 2013. As part of the review process her supervisor ML informed the claimant that sometimes her manner can come across as harsh and intimidating especially to the new younger staff. ML stressed that this was just feedback and that it was intended to be constructive and informal. ML strenuously disputes telling the claimant she had an angry face. ML was aware that the claimant was unhappy with her review and after the claimant returned from an absence arranged for her to speak with CK.
LS, the assistant manager at the time gave evidence that she had a conversation with the claimant in November 2013 following a number of exit interviews suggesting the claimant’s manner could be abrupt, dismissive and sharp. LS asked the claimant to be mindful of her behaviour.
On the 4th of December LS had a conversation with the claimant at the claimant’s request. The claimant asked for the complaint details as per her P4G. LS explained to the claimant that there were no formal complaints and that ML valued her and ‘was a big fan.’ As far as LS was concerned the conversation ended on good terms and everything was fine with the claimant. The claimant never raised a formal grievance although LS told her she had that option. LS spoke to the claimant twice while she was on sick leave and she never mentioned a problem.
CK, the Manager at the time gave evidence. CK was aware of the complaints in the summer of 2013 and that LS had spoken to the claimant about them. At the collaboration meeting in June/July 2014 the claimant and the issues were discussed as part of the P4G process; the whole management team decide on a grade. LS successfully advocated for the claimant’s result to be upgraded from a below expectations to a mostly meets.
LS arranged for the claimant to speak to CK as she was aware the claimant was unhappy after the P4G review result. CK had a chat with the claimant; her main issue seemed to be that ML was new and young and should not have been giving her that feedback. CK informed the claimant that she had the option to raise a formal grievance or agree to mediation. The claimant said she would revert to CK with her decision but she did not. On a few occasions CK met the claimant ‘in passing’ and asked how she was; the claimant told CK all about her health issues but never mentioned any work related problems. The claimant left on sick leave on the 4th of December and never returned to work. The company paid the claimant 3 months sick pay which expired on the 3rd of March. The claimant resigned on the 3rd of March 2015.
CK believed the purpose of the meeting on the 24th of February was to facilitate the claimant’s return to work. It became clear to CK that the claimant was still upset about the P4G feedback. CK tried to reassure her that feedback is normal and intended as constructive. CK again told the claimant that she had the option to take a formal grievance. CK suggested mediation or a change to her work (location/hours/manager) as a resolution and a way to get her back to work. At this point the claimant’s friend on her behalf, asked for compensation and said once received she would not be coming back to work. The meeting concluded with the claimant saying she would revert to CK; CK then received her resignation letter. The claimant did not give the respondent an opportunity to officially deal with her complaints.
Determination
The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the claimant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.
“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 as discharged from any further performance”
If the tribunal is not satisfied that the “contract” test has been proven then it is obliged to consider the “reasonableness” test.
“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”
When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate his contract of employment.
The Respondent argued that in addition to satisfying the test set out by Lord Denning in Western Excavation (E.C.C) Ltd the claimant, must also show that she exhausted the internal grievance process prior to lodging her claim with any external body. In that regard they rely on the case of Conway V Ulster Bank Limited UD 474/1981 where in the Tribunal stated:-
“In writing the letter of resignation, the appellant did not take the steps outlined in the grievance procedure. The Tribunal has long considered that such agreements, usually described as Union Management agreements, are binding on the parties because they chose to be bound by them”.
The Claimant argued that it is not a mandatory requirement to exhaust the internal grievance process prior to commencing proceedings externally. In that regard they relied on the case of An Employee v An Employer 1274/2010 wherein an employee who had not exhausted the internal grievance process nevertheless succeeded in her claim for constructive dismissal.
It is well established in law that the general rule is that a claimant must exhaust the internal process prior to lodging a claim with any external body. On occasion, and in very limited circumstances, when a claimant can prove, by the production of evidence, that the invoking of a grievance process would be a fruitless exercise the general rule can be displaced.
The claimant commenced her employment with the Respondent in 2008. She enjoyed her work in the bar and got on well with other staff members. In 2013 an informal complaint was made by two exiting members of staff through their recruitment agency. The two exiting employees felt that they the claimant was difficult to work for and they took objection to how she spoke to them. The claimant was informed generally of the complaint but was not told the names of the two individuals as they had left the company. The respondent asked the claimant to be mindful of how she spoke to staff members in general. The claimant in reply argued that the quality of the staff she had to work with was not up to standard. No formal complaint was lodged. The claimant did not invoke the grievance procedure. As far as the respondent was concerned that was the end of the matter.
At the P4G review several managers voiced concerns about the claimant. As a result of that the claimant was scored a ‘mostly meets’. She had also received a ‘mostly meets’ the previous year. The respondent stated that this is not a bad result and is equivalent to 85% or a B+. There was a delay in giving the claimant the result of the review. It was made known to the claimant on the 19th September, 2014 and was for the period July 2013 to June 2014. When given the results of the review it was open to the claimant to appeal the result but she did not. During this time the relationship between the claimant and ML broke down. The claimant stated that ML told her that she had an ‘Angry face’ and she took grave exception to this. ML denies making the comment and stated that she merely told the claimant to be mindful of how she spoke to staff.
During the hearing of this matter it was clear that the claimant had two main issues:
- The ‘ Angry face’ comment
- The refusal of the respondent to identify who had spoken negatively about the claimant at the P4G review.
There is a conflict of evidence in relation to the ‘angry face’ comment. One says it was said and the other denies saying it. If the comment was said, and if the claimant took issue with it at the material time, the Tribunal would have expected to see the formal grievance process being invoked. The Tribunal are satisfied that the claimant, despite bringing the matter up with the respondent, did not invoke the formal grievance process. In those circumstances the respondent was under no obligation to investigate the matter.
The second issue was the non-disclosure of the names of the managers who had spoken negatively about the claimant at the P4G review. The claimant became paranoid that staff were talking negatively behind her back and the fact that she didn’t know who was saying negative things about her only served to fuel that paranoia. The respondent stated that its general policy was not to disclose the names of those who gave negatives comments at P4G reviews as it would only serve to cause animosity amongst staff and management. The Tribunal find that these negative comments were made, not as form of complaint but merely as an objective assessment of the claimant’s work. Employees must accept that negative feedback is always a possibility in their annual reviews but such feedback is merely a form of constructive criticism and should be viewed by an employee as so.
The complainant went out on sick leave on the 4th December, 2014 with a stress related condition. She remained in touch with occupational health and on the 23rd February was deemed fit, by Dr. SW to meet with management to discuss her workplace concerns. The claimant requested that the meeting be somewhere other than in the main building as she didn’t want to meet with ML. The ‘back to work’ meeting took place in the Occupational Health building on the 24th February, 2014.
On the 24th February the claimant brought a retired Union representative with her. At that meeting CK put several options to the claimants in an attempt to facilitate her return to work. They were:-
- Mediation
- Change of Manager
- Change of Hours
She was asked for her suggestions but none were forthcoming. Her representative requested that the respondent pay compensation to the claimant but that proposal was rejected by the respondent. The claimant resigned her position on the 3rd March, 2015.
The Tribunal find that the ‘contract’ test “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 as discharged from any further performance” has not been satisfied.
In circumstances were the contract test has not been satisfied the Tribunal must look at the ‘reasonableness’ test.
“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”
The Tribunal find that it was not reasonable for the claimant to terminate her contract of employment in circumstances were she failed to invoke any grievance in relation to her concerns and failed to appeal her 2014 review result. Furthermore, the Tribunal find that the respondent acted reasonably in their dealings with the claimant and were fair and objective at all times. No evidence was adduced before the Tribunal which could lead the tribunal to conclude that the failure to invoke the grievance process was justified. The Tribunal also find that the claimant’s reaction to the two issues was disproportionate to the issues themselves.
The claimant’s claim pursuant to the Unfair Dismissal Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)