Complainant

Respondent

Anonymised Parties

Data Analyst

A Tech Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00007518-001

10/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00007518-002

10/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00007518-003

10/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 (Withdrawn at Hearing )

CA-00007530-001

11/10/2016

This case is conjoined to ADJ 3976 and was heard simultaneously on 16 January 2017. The complainant has submitted that she was constructively dismissed on 5 September 2016; subjected to bullying and harassment and not provide with a statement of her terms of employment .

The complainant was engaged as an Independent Contractor .I have found her true employment status to be that of an employee as reflected in ADJ 3976 and as linked to ADJ 4297, which originated from the same employment .

The complainant is a Dutch National who commenced work as a Data Analyst on 11 November 2014.She was described as a self employed contractor .She was based at an associate company site and reported to the respondent representatives .She clocked in and worked a set working week .Her lunch break was reduced by half an hour in 2015.Changes were communicated by email. She worked overtime.

The complainant contended that her work was continually tested by her manager and she was fully engaged in the social aspect of the work environment .She followed the respondent policies and this was her sole employment.

She contended that she was in fact an employee and not an Independent contractor. She submitted daily reports and spreadsheets and did not provide her own tools .The complainant submitted that she was employed by the respondent but under the daily control of the associate company. She had discussions with the respondent in December 2015 surrounding attaining “employee status “. The complainant described a time of “great uncertainty” during the period of working for the respondent.

She contended that the associate company had a very strong influence and interference in her working life and she was unhappy with that. She was relocated in August 2015 and her hours were increased unilaterally and her fringe benefits such as subsidised canteen decreased .She was not offered a pay rise or promotional opportunities and believed that she was subjected to excessive monitoring by the associate company management.

She was dissatisfied with the lack of processes or tools for performance evaluation .She believed that she was doing her job correctly, but did not feel that she had a secure workplace and was not being listened to .It was unclear to the complainant just who was responsible for what and when a discrepancy was highlighted to her on an end of day report, this was the” last straw “.

She submitted that she had done all in her power to secure “fairness“in the form of proper performance evaluation processes but had not succeeded.

The complainant was not given a job description and The complainant contended that she witnessed inequality as pay rises were given to some staff and others secured promotion .The complainant sought transparency on being placed on “ refresher “ status and placed on an unfamiliar market for testing purposes , where the Dutch and US markets differed .

She stated her dissatisfaction with the confusion she experienced when being asked to work as an employee but paid as a Contractor and when she sought to work as a Contractor , this was not permitted by the respondent

Some progress was made and she was offered a fixed term contract in June 2016. She sought clarification on clause 24 and was unhappy with the respondent lack of response on

1 Performance Process

2 Clause 24 prohibited a right to litigate in future, if needed.

On August 22, 2016, the Complainant emailed the respondent and stated that she did not wish to accept the offer of a fixed term contract and had decided to leave on completion of her current contract.

“As I have mentioned before, the lack of communication, office politics, micromanagement, lack of acknowledgement and the all in all atmosphere in this office have really taken their toll on me and have affected my health and my mood. I have taken this decision after a long deliberation ,But I don’t think staying in the company will do me any good “

In answer to the respondent questions, the complainant described experiencing a nervous breakdown and denied that it was a glib statement .She confirmed that she had not received a medical diagnosis, as she did not believe in medication and could not afford medical care .She confirmed that she was compelled to leave a job she liked on 5 September, 2016.

The complainant commenced a new position on 11 September 2016 and had accepted a € 9,000-€13,000 per annum reduction in pay. She described that she had lost confidence in Human Resource and Project Manager staff at the respondent company.

The complainant sought compensation for Constructive Dismissal :

The respondent denied that the complainant was either an employee or compelled to leave her job due to the conduct of the respondent .The respondent refuted the complainants submission of her employee status and contended that she was not properly within the ambit of the unfair Dismissals Legislation .

The respondent denied that the company presided over an oppressive environment and that they had actually listened to the complainant’s concerns .The respondent presented the background to the evolution of the project onto which the complainant was hired in 2014. The company acknowledged that the project had expanded faster than envisaged and confirmed that there was some confusion regarding the management structures .However, the respondent placed a manager on site at the associate company, whose function was to serve as a Co ordinate for the contractors assigned to that base.

The respondent submitted that the company was very diligent in their dealings with the complainant. She was offered a Fixed term contract on 28 June 2016; this was followed by a period of consultation and engagement which concluded with the complainant’s decision not to accept the contract and her notice of resignation on 22 August.

The respondent drew particular attention to the respondent response to the complainants notice on 24 August

“……….I is sorry to hear that .Nevertheless, I am happy to meet and discuss any concerns. From my point of view things are definitely set in motion, but I am looking forward to taking further feedback on board ….”

(Project Manager.)

The respondent submitted that the complainant had not formalised her concerns through the company grievance procedure , a copy of which was submitted in evidence .The team at HR and Project Manager level had done their utmost to offer the complainant some reassurance in relation to her quest for performance measurement tools . The respondent confirmed that the new tool was now in place .A Human Resource presence had been added to the associate site from the respondent staff to support the 150 workers on the Project and feedback was positive.

The respondent contended that the complainant could not demonstrate that she was entitled to or that it was reasonable for her to terminate the employment relationship. The respondent contended that the complainant had secured another job prior to her termination of contract and she had not submitted evidence of loss or mitigation.

The respondent denied that the complainant was subjected to bullying and harassment .The company had not received an activated grievance from the complainant . All her concerns were addressed in the informal process.

A change agenda on performance improvement plans was underway during the course of the complainants work experience and this process took time .

The respondent rejected the complainants contention that she did not receive a statement in writing of her terms and conditions of employment .She was originally retained as an independent contractor and her contract was renewed. She was then offered a fixed term contract of employment setting out her proposed terms and conditions of employment and despite numerous offers , she refused it .

I have already established that the complainant secured employee status from her commencement of employment in November 2014.

A claim for constructive dismissal places a very high burden on the complainant as evidenced in the EAT case of Fitzgerald V Pat the Baker [1999] E.L.R 227 and in the case of a claim for Wrongful Dismissal at the Supreme Court in Berber V Dunnes Stores [ 2009] 20 ELR 61 .

Constructive Dismissal is not specifically mentioned in the Unfair Dismissals Legislation .The definition relied on can, however be found in Section 1 of the Act :

1(b) the termination by the employee of her contract of employment with her employer, whether prior notice of the termination was or was not given to the employer, in the 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.

I must consider whether because of the respondents conduct; the complainant was entitled to terminate her contract or whether it was reasonable for her to do so?

I have carefully considered the submissions both written and oral made the parties. I have also considered the evidence adduced at the hearing .I has found this case to be highly complex and I propose to endeavour to analyse both parties stated positions.

As I have found that the complainant can safely rely on the title of “employee “, I find that she is covered by the umbrella legislation of the Unfair Dismissals Act.

I have considered the foundation document of the contract for service issued in November 2014.This document was rich in a description in autonomy that was not reflected in the reality of the operation of the contract . The complainant was a Dutch national, who had extensive experience in performance management systems .She was under the impression that “monthly reports” were required by the company and did not anticipate the actual divergence from that pattern. I accept that the associate company placed a requirement on the complainant to provide “ daily and hourly “ updates on work ,which caused her to feel “ watched and monitored “ . This was the fast paced , highly regulated environment where she found herself .

The complainant referenced that the intrusive role of the associate company in her working life was neither anticipated by her via reference to the contract for service or via a job description.

However, this role took on a larger role when the complainant’s performance was evaluated and she was placed on “refresher training“. I found that throughout her evidence to the hearing, the complainant was very fixed on how she believed that she had been wrongly judged and unfairly evaluated by the team based at the associate site .I believe that this occurrence went to the root of her difficulty and her wish to balance this by seeking to influence a fair performance evaluation measurement tool was honestly viewed by her as an adequate remedy for the wrong done.

I found the complainant to have been genuinely affected by her experience as a Maps Analyst based on a remote site. She relied completely on her foundation contract as her “navigation tool “for the employment. In light of her determination as an employee, this document could not be viewed as an adequate back up in that it did not have the necessary explanations for actual terms and conditions of employment.

This crystallised in the offer of the Fixed term contract, accompanied by an employee handbook in June 2016, which was rejected by the complainant in August prior to her resignation.

A careful consideration of this contract ,resulted in my forming the view that had this contract been available from the outset of employment in November 2014, the problems that arose for the complainant on

1 Clarification of management structures, performance appraisal and reportage

May have been answered in either the contract or the handbook or both. However, I must consider the facts of what actually happened.

The complainant received confirmation from the management team at the associate site ( the client) that she was required to undertake Refresher training .She took issue with how this was broached and how it was remedied at the site .She broadened her concerns from an “ I “ platform to “ we “ platform and sought to take on the concerns of the group of contractors and endeavoured to advocate for improvements   in conditions , in particular the introduction of a performance appraisal tool in which she had confidence . I noted that the complainant had an email address from the associate site rather than the respondent.

I was particularly drawn to the correspondence exchanged between the parties following the fixed term contract offer .These reflected phone conversations , email s, meetings .I was particularly drawn to two emails exchanged between the complainant and the respondent HR Manager minutes apart on 19 July .

The first at 3.01 pm: notification of working under protest, as unable to sign the fixed term contract.

The second at 3.03 pm: notification of concerns on performance management and the employee handbook.

The complainant sent a very positive message of thanks to the respondent HR Team on 27 July 2016,and detailed a collective concern on the manner o in which the associate company conducted “ random testing rather than a structured “ performance process “ .

This appears to have been followed by further conversations with the Project manager based on the associate site and concluded with a reference to a lack of clarity in the defined roles in management at the respondent company .The complainant resigned some 5 days later on August 22.

The respondent was clear on the actual business relationship of a tri-partite nature between the company, the contractors and the client, (the associate company) .I was struck by the clear account of how the project expanded rapidly and while the company was keen to develop an infrastructure to support contractors, the respondent confirmed that there were acknowledged gaps in that support.

Instead the respondent detailed that “it was work in progress “and the company saw the offering of fixed term contracts with a commensurate expansion of terms and conditions as a first step on the road to equity.

The respondent confirmed that the complainant raise her concerns in an informal setting and she had not actioned a grievance procedure. I was presented with a copy of a respondent grievance procedure .It was clear to me that this was a document earmarked for employees.

“ The aggrieved employee has the right to representation by a professional organisation, a staff association or a colleague /friend “

I return to the test for constructive dismissal established in Berber V Dunnes Stores

1 The test is objective

2 The test requires that the conduct of both the employer and the employee be considered.

3 The conduct of the parties as a whole and the cumulative effect must be looked at.

4 The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly, in order to determine if it is such that the employee cannot be expected to put up with it.

I find that the lion’s share of the complainant’s unease emanated from the management of her performance by the associate company. She advocated for improvements via the respondent HR Team and the On site Production Manager.

I find that the complainant was hasty in her rejection of the offer of a Fixed term contract, which had the potential at least to serve as a gateway from a miscast employment relationship to that of a defined employee. I also find that the complainant sought to raise collective grievances in an individual setting and her frustration increased when change did not unfold at the speed she wished.

I find that it would have been beneficial for the respondent to have chaired some tri partite discussions between the relevant associate company, the complainant and the respondent. Instead the parallel and separate discussions while, well intentioned did not serve to resolve the clear difficulties experienced by the complainant. This does not place the conduct of the employer into the realm of “unreasonableness”.

I appreciate that the complainant was aggrieved at her experience of work at the respondent company .There was a high level of fluidity and uncertainty, unaided by a proper contractual reflection of actual employment. I can see that this complicated matters somewhat.

However, I found that the complainant made an informed decision to reject the offer of fixed term employment and left the employment some weeks before her existing contract ended. I did not receive any medical reports on the complainant’s health during her employment or on conclusion. I appreciate that she was upset and unhappy at work without the protection which she saw a proper performance management tool would provide.

Improvements in terms and conditions frequently occur on an incremental basis and while I can readily see that the complainant had the best interests of her colleagues at heart, advocating for a large group can be onerous and is best addressed on a collective basis rather than by one voice which may tire easily.

In this case, the issues causing the complainant to refrain from signing the contract were logically reasoned and recorded. She had decided to move on and gave notice of her planned departure. She had not raised a formal grievance or set out a defined course of action required, outside the manifestation of a performance management system, which I accept from the respondent submissions was in its infancy. I note the complainant’s unease with clause 24 of the contract; however, this was not escalated onto a formal footing .Barry Relph V HSE [2016] 27 ELR 268, considered.

I appreciate that there was no guidance for the complainant in her then contract for service, however, given my findings in the earlier case, It was clear that the complainant had the option of Union representation at this key moment in her employment and I could not establish any evidence of formal resolution mechanisms attempted outside statements of identified deficits in the performance management system and aspects of the proposed employee handbook adopted by the respondent.

I cannot establish on the facts as presented that the complainant was entitled to consider that she had been constructively dismissed on 5 September 2016. The claim for constructive dismissal has not succeeded.

CA-00007518-002 Industrial Relations Dispute

The complainant outlined an express difficulty with a named manager , Mr B on the associate site , she contended that she was treated unfavourably by him and harassed .She raised the issue with the respondent HR Manager and the result centred on Mr B being allowed to speak to her by email .The complainant contended that her job proficiency was being questioned by Mr B an he called her “ stupid “ on two occasions .The complainant confirmed that she had not sought an investigation into her complaints against Mr B .

The respondent denied that the complainant had been the victim of bullying and harassment .The respondent accepted that the complainant did experience difficulties at the client’s premises but this was not bullying and harassment.

The respondent introduced performance improvement plans in August 2016.The respondent submitted that the client, had huge autonomy over the manner in which work was carried out on their site .The respondent contended that changes took time to implement and the respondent was committed to that change.

Recommendation :

The complainant no longer works for the respondent .I have investigated the dispute as introduced by the parties. I find that there is considerable overlap in the dispute and the complaint of constructive dismissal.

I find that there were delays in providing a comprehensive performance improvement plan on the respondent side which were earmarked for remedy by July 2016, within the lifetime of the complainants contract.

I find that the issue of performance management was a priority for the complainant .I appreciate that the opaqueness of the employment relationship may have made conflict resolution more difficult, however .I am satisfied that the complainant did not action a request for an investigation into her allegations of bullying and menacing behaviour. I could not establish the presence of a complaint lodged against Mr B.in this regard either . Instead , I noted the parralell pattern of advocacy in pursuance of improvements in conditions by the complainant .

The complainant has sought compensation in respect of

“Being under constant monitoring, being exposed to intrusion, menacing behaviour and intimidation in regard to a lack of an evaluation process.”

I do not consider the claim to be well founded given the evolution of the performance management system and the absence of a formal complaint by the complainant .It is of note that the complainant was represented by her Union during the formalisation of this complaint and internal procedures had not been exhausted .

CA-00007518-003 Complaint Under Terms of Employment ( Information ) Act 1994.

The complainant contended that she did not get a statement of her terms and conditions of employment reflective of her actual employment relationship . The imperative for Daily reports were not reflected on the contract .

She submitted that changes in her management structure, location and working hours occurred without being reflected in a contract .

The respondent denied the claims .

Section 1 of the Terms of Employment ( Information ) Act 1994 defines an employee as

“ employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act,

Section 3 of the Act requires an employer to give or cause to be given to the employee a   statement in writing containing   13 particulars of the terms of the employees employment .

( a) the full names of the employer and the employee,

( b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act ,1963,

( c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

( d) the title of the job or nature of the work for which the employee is employed,

( e) the date of commencement of the employee’s contract of employment,

( f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

( fa ) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee ’ s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

( ga ) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee ’ s average hourly rate of pay for any pay reference period as provided in that section, ]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

As I considered this complaint, I was struck by the dichotomy between the 4 page contract for service presented to the complainant in November 2014 and the eventual   13 page contract of service presented for her consideration in June-July 2016 . As I have remarked previously , the complainant was unhappy with the stated variance between what she was detailed to do in her contract for service as opposed to the reality of the job .

The complainant acknowledged the “ fit “ of the proposed contract of service to the legislation on 6 July 2016 in an email to HR . Her problem by then was with the handbook .

The Act obliges an employer to uphold Section 3 in the presence of a contract of service .It has no remit over an Independent Contract. Given that I have determined the complainant an employee from November 2014, I must find that she was covered by the Act .

However , the Terms of Employment Act 1994 does not oblige an employer to address the points made in the complaint on the failure of the respondent to include the following into the statement

1 Daily reports as opposed to monthly reports

2 Appointment of a New Manager

Section 5 of the Act places an obligation on an employer to notify an employee in writing of the nature and date of the change as soon as be thereafter , but not later than one month after the change takes place .

I found that the respondent complied with section 5 in terms of the revised working hours and the revised workplace in 2015 .This is evidenced by the communication exchanged between the parties dated August 17, 2015.I appreciate that the same communique was sent to contractors and employees at that time .

I have , however found a continuous breach in Section 3 of the Act in relation to omission of the location of the place of work and terms relating to hours of work .

I appreciate that the statement of terms may be incorporated in several documents but I could not establish the presence of those terms in the requisite 8 week period .

I have found that the complaint is well founded and having regard to the fact that the complainant no longer works for the respondent , and the unusual circumstances surrounding this case, I award €400.00 as “ just and equitable “ compensation for the breach .

Constructive Dismissal /Contract for /Contract of Service.