ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00007920

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00010465-001 27/03/2017   Date of Adjudication Hearing: 10/11/2017 Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.  

Background:

The Complainant was employed by the Respondent as a Finance Manager and commenced her employment on 09/10/2009. During 2012 the Complainant was diagnosed with cancer, after treatment and a spell working from home she returned to work in early January 2013 to discover that the Respondent company were in the process of recruiting a new Finance Manager. Following her return to October 2016 the Complainant experienced some difficulties during her employment. The Complainant went on sick leave in early October 2016 until her departure from the Respondent Company in May 2017.  

Summary of Respondent’s Case:

The Respondent made a preliminary argument in relation to this case. By letter dated 7th November 2017 the following points are raised: ·         The Claimant was still an employee at the time her complaint was registered with the WRC i.e. 27th March 2017. ·         The claimant remained an employee until 28th April 2017 when her role was made redundant due to a reorganisation of the Finance Department. ·         The claimant was paid statutory redundancy and she cashed the redundancy cheque on 4th May 2017. ·         A series of emails were exchanged between the claimant and the Senior HR Manager of the Respondent in relation to the re-organisation of the Finance Department. ·         The Claimant states in an email dated 20th March 2017 that her part-time position of Finance Manager had become redundant and the alternative of a full-time position was not acceptable to her. ·         By email dated 26th April 2017 the claimant states “I am accepting that my position had become redundant and on the basis of it being full-time that I could not take it up. That (sic) is an email accepting redundancy for the above reasons”. ·         By email dated 28th April 2017 the senior HR Manager in an email stated “Thank you for clarifying and confirming your decision to opt for redundancy”.Substantive case. The Complainant commenced employment with the Respondent on 23rd November 2009. She was employed as a Finance Manager working 17.5 hours per week. Early in October 2016 the Complainant went on sick leave, her medical certificates stated “work related stress “as the cause of her absence. She was invited to a meeting with the Respondent HR co-ordinator on 26th October to discuss what supports the Respondent could put in place for her. She was also informed of an overall organisational update. This meeting ended with the Complainant agreeing to put in writing the cause of her workplace stress as she was not able to do so verbally at the meeting. On the same day, the Complainant lodged a written complaint by email to the CEO outlining allegations that she was stressed, undermined and bullied by more senior members of the Respondent’s Finance Department. An investigation took place and on 23rd December 2016 the outcome of the investigation was communicated to the Complainant – The complaints were not upheld. The Complainant continued to submit medical certificates stating that she would be unfit until April 2017. In early 2017 the Complainant appealed the outcome of her complaint and to this end met with the CEO on 31st January. On 16th February 2017, the CEO informed the Complainant that her appeal was unsuccessful, also in this letter from CEO there were words to the affect that following the Complainant being passed fit to return to work that a number of recommendations would be implemented to facilitate her return to work. Following a departmental review a meeting with the Complainant took place on 8th March 2017 to explore possible options. A second meeting, on the same date, also took place between the Complainant and the Senior HR Manager. The possibility of a mediation process between the Complainant and the Finance Director was discussed and planned for on the return to work of the Complainant. During the first meeting on 8th March 2017 a few queries were raised by the Complainant, these were responded to on 10th March. One of the responses mentioned that the Complainant could take on a new role in the Finance area and was asked to give an answer by 20th March. On 20th March the Complainant sent an email to the Senior HR Manager stating she would not be returning to work. She gave two reasons for this decision (1) the new role offered was a full-time role and (2) she believed she had been treated unfairly. At a meeting on 29th March 2017 the Complainant confirmed that she would take redundancy. The Complainant then raised the point that she had been at a significant financial loss due to unpaid absence (€8,000). This occurred as the Complainant had exceeded the sick pay entitlement provided for under the terms of the Respondent’s sick pay scheme. The Complainant asked the Senior HR Manager if this could be looked at. The Senior HR Manager committed to speaking to the CEO on this matter. On 31st March 2017, the Complainant was sent her notice of redundancy. On 24th April 2017, the Respondent HR Manager wrote to the Complainant informing her that she had received the WRC form completed by the Complainant indicating that she had resigned on 22nd March 2017. On 26th April 2017, the Complainant sent an email to the Senior HR Manager confirming that she was accepting redundancy as she did not wish to work on a full-time basis. In this email, she states that she had not written anywhere that she had resigned. On 28th April 2017, a letter and email were sent by the Respondent Senior HR Manager to the Complainant. These documents confirmed the date of redundancy and the amount of redundancy pay. By email on 28th April 2017 the Complainant enquires about payment for the duration of her absence. She is informed by return on the same date that as she was pursuing a complainant to the WRC the Respondent HR Manager was not prepared to pursue this matter any further. Respondent Case. The Complainant never resigned from her employment. Her post was made redundant. She was offered an alternative role but this was not acceptable to her. The Complainant opted to takeredundancy. This is clear in correspondence received from the Complainant. If the Complainant is now suggesting that she was made constructively dismissed and not made redundant then she must repay the redundancy monies paid by the Respondent.  

Summary of Complainant’s Case:

During 2012 the Complainant was diagnosed with cancer, after treatment and a spell working from home she returned to work in early January 2013 to discover that the Respondent company were in the process of recruiting a new Finance Manager. 2013. After discussing the situation with the Director of Finance and having her weekly hours reduced to 17.5 hours per week as per her contract of employment the Complainant felt totally demoralised and that her employment was under threat. When the Director of Finance asked the Complainant if she felt threatened by this, the Complainant answered yes, she did and was told there was no need for her to worry as her job was permanent and the new Finance Manager was on a fixed term contract. At 2.30pm the same day the Complainant again sought out the Director of Finance. During this second conversation, it is alleged by the Complainant that she was informed by the Director of Finance that there were concerns that her cancer would come back and that she would be taking a lot of time off sick. Following this discussion, the Complainant submitted a letter from her oncologist stating that she was fit for work. 2014. During the January payroll checks the Complainant noticed some anomalies in the rates of pay for three directors. When she queried this with Human Resources she was informed that it had been authorised by the CEO and that HR were to keep quiet in relation to such increases and not to show or issue the files to anyone. The Complainant thought the whole situation ridiculous. A few days later the Director of Finance called the Complainant into her office and informed her that complaints had been made against her, these complaints included allegations of her shouting and swearing and wandering from office to office and that this had been stated by five employees. When the Complainant asked for the names of the employees she was told no. This resulted in the Complainant believing that people in the building were watching her and lying about her. During 2014 two new Finance Officers and a new Senior Finance Manager were recruited with the Senior Finance Manager becoming the Complainant’s new line manager. There was a meeting early in 2015 the purpose of which the Complainant thought was to hand over her HR file to the Senior Finance Manager. During this meeting the Senior Finance Manager was informed of errors the previous year. This made the Complainant feel humiliated and embarrassed.   2016.  Throughout 2016 the working relationship between the Complainant and her more senior colleagues appear to have become very strained with the Complainant’s work constantly being criticised despite her assertions that the accounting system, in part, was not fit for purpose and that her workload appeared to be increasing at a time when her hours were being reduced. Towards the end of August 2016, the Complainant spoke to the Director of Finance in relation to the way she had been spoken to by the Director of Finance in front of the Complainant’s line report. She was informed by the Director of Finance that several complaints had been received in relation to the quality / accuracy of her work and that she was making too many personal phone calls each day. The Complainant asked her manager (Senior Finance Manager) for details of the errors and was informed the next day at a PIP (Performance Improvement Plan) meeting that there were none.   Performance Improvement Plan.  The Complainant was given a document and was asked to sign it the following day before she left for home at 12.30pm. The Complainant believed the action end points were not clearly defined and as such were not measurable. When the Complainant asked why she was being put on a PIP she claims the Senior Finance Manager told her “You know why” the Complainant states that she did not know why. The Senior Finance Manager informed the Complainant that he was under direct instructions from the Director of Finance. The Complainant then asked for the list of errors to which she was told there were none. On returning from holidays on 19th September 2016 the Senior Finance Manager asked the Complainant to meet with him to go over the PIP. Again, the Complainant pointed out that she felt unable to sign such a document as she was still unaware of the errors she was accused of making. The Senior Finance Manager again said it was not him pushing the PIP, it was the Director of Finance. Later the same day the Complainant received an email from the Senior Finance Manager stating that he was under instructions to enforce the PIP whether it was signed or not.   Late in September the Complainant alleges that she was humiliated and undermined by the Director of Finance in front of her direct line report. This left her feeling pressured, stressed, bullied and undermined. The Complainant went on sick leave on 4th October 2016, her medical certs state that she was suffering from work related stress.   A significant part of the verbal submission from the Complainant relates to the question of sick pay during this period of absence from October 2016 until April 2017. The Complainant states that she is at a significant financial loss due to unpaid absence. When asked at the hearing to quantify this loss the Complainant stated that it was €12,105. The Complainant feels that she is entitled to this payment as her absence was due to work related stress.   The Complainant claims that she has gone through the Grievance Procedure.  

Findings and Conclusions:

Having considered the case in some depth I believe that the Complainant was made redundant from her position with the Respondent company on 28th April 2017. This redundancy situation was accepted by the Complainant. The complaint was received by the Workplace Relations Commission on 27th March 2017, the Complainant was still an employee of the Respondent Company on this date. I am unable to address the subject of payment for a period of absence under the Unfair Dismissals Acts 1997 – 2015.  

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.   For the reasons outlined above the Complaint fails.   Dated:   18th December 2017 Workplace Relations Commission Adjudication Officer: Jim Dolan Key Words: Date of Dismissal