ADJUDICATION OFFICER DECISION
ADJ-00002171
An Office Administrator (Represented by Reidy Stafford Solicitors)
V
A Joinery (Represented by Patrick J Farrell and Company Solicitors)
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-00002956-001 | 01/03/2016 |
Date of Adjudication Hearing: 17/10/2016
Workplace Relations Commission Adjudication Officer: Gerry Rooney
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.
Following the hearing the Complainant was asked to provide confirmation of her pay slips which was provided to the Respondent on 25th October 2016. The Respondent requested further time to respond to this information, and final submissions were received on 16th November 2016.
Complainant’s Submission and Presentation:
This case refers to an Office Administrator and estranged wife of a Director of the Respondent’s company. The Complainant has alleged that for a period of twenty months prior to her resignation she endured humiliation, isolation, abuse and bullying designed to force her out of her employment. Following medical advice from her GP the Complainant maintains that she had to resign from her employment and did so on the 14th September 2015.
The Complainant commenced employment on 1st May 1994 and worked a 40-hour week where she was paid a gross wage of €480 gross per week, plus €60.38 in associated benefits. The Complainant maintained that she was never provided with a written contract of employment. The Complainant also maintained that there was no grievance procedures provided to her during the course of employment.
The Complainant advised that she worked as an administrator for the Respondent carrying out all of their administrative duties including wages, banking, invoicing, debt collection, staff and HR, receptionist and typist duties. Whilst she initially started work in 1988 to assist her husband in the development of the business she became a paid employee in 1994.
The Complainant outlined that she was separated from her husband, a Director of the company, in 2013 and whilst there had been difficulties in the marriage from time to time, those difficulties were never brought the workplace until 2014. The Complainant maintained that it was shortly after the separation that the Respondent commenced a vicious and vindictive campaign to force her out of her employment.
In this regard she alleged the Respondent had a meeting with the company’s accountant 23rd March 2014 and at this meeting it was clear that the termination of the Complainant’s employment was discussed. It was contended that the company’s accountant wrote to the Respondent 26th March 2014 referring to this meeting and where it was noted that the Respondent had already interviewed a potential employee for the position of duties held by the Respondent, namely accounts/ administration. It was observed in the correspondence between the company accountant and the Respondent that advice was provided with regard to whether the Complainant intended to leave of her own the choice which would be deemed as a resignation, or whether the Respondent was effectively terminating the Complainant’s employment and where such action would be deemed as an unfair dismissal. In this regard the letter advised that the Respondent should consider the nature of terminating the Complainant’s full-time position before offering any position in the accounts/administration function to a potential employee. The letter also advised that the Respondent could consider reducing the Complainant’s working hours to less than half her normal weekly hours and where she would then be on short time and entitled to claim redundancy.
The Complainant further contended that the Respondent wrote to her on 26th March 2014 in an attempt to put her on short time working stating that that due to the current circumstances between you and I on a personal level outside [the company], an amicable working relationship is difficult to sustain at the present time. Due to this, by mutual agreement between us, your work will reduce to two working days and you will receive a net take-home pay €200 for these two days...” The Complainant responded on 27th March 2014 advising “your intention to reduce my working hours to 2 working days was not by mutual agreement. Due to family constraints I shall continue to work the hours as heretofore”. The Complainant advised that she continued to work her normal working hours at this time.
The Complainant maintained that from January 2014 until September 2015 she was subjected to a campaign of intimidation from the Respondent which was intended to force her from her employment. In her evidence she referred to some thirty-seven instances where this intimidation occurred. The examples provided included allegations of inappropriate language both directly to her and when talking about her to another Director of the company when in her presence; the Respondent telling the Complainant that his New Year’s resolution was to get rid of her; referring to the Complainant as vermin and being like a cancer with the use of inappropriate adjectives accusing her of getting issues wrong; referring to the Complainant as being incompetent in very abusive language of a sexual nature; claiming that the Respondent was going to give another person the Complainant’s job and that the new person would be starting in two weeks; making some very crude and personal comments about the Complainant; threatening to tell business clients about the Complainant; on an occasion telling a contractor that they were walking in on divorce talks; accusing the Complainant of robbing the Respondent of his money and referring to her as a thief; telling the Complainant that she was not getting paid for her work; providing the Complainant with a further letter in August 2014 (that appears to have been drafted on 18th July 2014) stating that her work would be reduced from five day week to a three-day week, that the Complainant was advised that a new employee would be starting in September 2014 and that the Complainant was not to deal with a customer of the client as in future the new employee would deal with this client; that the Complainant was told that she could sit doing nothing while the new employee was there; that in November 2014 the Complainant was given a verbal warning for talking about the business but she had no idea what this warning referred to; that the Respondent allegedly slapped the complaints laptop closed and verbally assaulted her; that the Respondent allegedly told another Director that he was not prepared to work with the Complainant anymore; that the Complainant would not be paid for holidays she took in December 2014; that the Respondent shouted at the Complainant for completing her tax returns which she contended was part of her job; that in December 2014 a new employee was told by the Respondent that “we have personal shit going on so there will be more work here for you in the future”; there was ongoing inappropriate and vulgar comments made directly to her, and about her, to other staff; that the Complainant was ignored; that instructions for the Complainant to complete her work were passed to her through another Director whilst she was present in the same office; and that the Complainant was told by the Respondent that she would not be getting holiday pay over the Christmas period. Other alleged incidents were submitted during the hearing
The Complainant maintained that she submitted a written grievance to the Respondent on 19th January 2015 and that this grievance was not handled properly by the Respondent where the Respondent referred to the issues raised as a disgrace and that they were lies. Her grievance was not addressed.
The Complainant maintained that the intimidation continued where on 16th March 2015 she was unable to attend work because she was suffering from stress and anxiety. The Complainant remained off work until 27th March 2015. The Complainant advised that she would have then found a letter on her desk from a solicitor’s company referring to personal property and she asked the Respondent not to discuss her personal business at work and in particular with another staff member. The Complainant alleged in response the Respondent advised her by using inappropriate language that he would do what he likes.
On 23rd March 2015 the Complainant alleged that she received her wages but they were reduced by €40 and that the Respondent refused to explain why. The Complainant maintained that the accountant advised that the deduction was for time taken off and where the Respondent stated to the Complainant that she was lucky as there should have been more taken. The Complainant submitted that the Respondent then advised the Complainant to get her solicitor to write to him about the wages. The Complainant maintained that when she brought her concerns to another Director he advised her that he did not know why the Respondent was docking €40 and commented that he did not mind her going for her girls (picking up her children) and stating that it was an awful situation that she was in.
The Complainant maintained that the intimidation continued through April, May and until September 2015. Such was the concern from the Complainant that she instructed her solicitor to write the Respondent on 26th May 2015 outlining that she was gravely concerned regarding the difficulties that had arisen in respect of her employment and where her solicitor notified the Respondent that the Complainant reserved the right to record was happening and rely on such issues as may be necessary in the future. Following this the Complainant maintained that the Respondent told her he would be putting in cameras into the office for security reasons. It is noted that CCTV was never installed.
On 26th June 2015 the Complainant broke her wrist in an accident not related to work and was out of work until 8th August 2015. During her medical treatment the Complainant maintained that she was advised on several occasions that for the sake of her health she should not return to her place of employment. However, she returned to work on 10th August 2015 where she alleged the intimidation continued. As conditions had not improved the Complainant took further sick leave on 11th August 2015. By this time, she felt she could no longer endure what she was experiencing and she was certified by her GP as being unable to attend work because of the stress and anxiety. The Complainant maintained that her GP certified her as being unfit to return to work until at least 30th September 2015, and on 20th September 2015 her GP provided certification that recommended on very genuine medical/psychological grounds due to work related stress that the Complainant does not return to her present work.
As a consequence of the ongoing intimidation which the Complainant argued remained unresolved despite a number of representations made, the Complainant wrote to the Respondent 14th September 2015 advising the Respondent that she was resigning from her employment. On 5th October 2015 the Respondent wrote back stating it was with regret that they accepted the resignation. The Complainant maintains that another employee who was appointed earlier in the year has since been fulfilling her role.
As a remedy for the alleged constructive dismissal the Complainant was seeking compensation for her loss of earnings.
As a consequence of having to resign her position the Complainant argued that she suffered a loss of earnings stating her benefits would have been her net pay of €413.52 per week, plus a diesel allowance of €30 per week, mobile phone allowance €15 Euro per week, and Health Insurance contribution of €15.28 per week- all of which amounted to a net income of €473.90 per week.
The parties disputed the actual amount of remuneration and benefits and consequently the Complainant sought a reconvening of the hearing to address these anomalies.
Since her termination of employment the Complainant sought employment elsewhere and was successful in being appointed in mid-November 2015 as an administrator in a private hospital where at the time of the hearing she was earning approximately €18,440 gross per year. She argued that she has also incurred travel costs of €228 euro per month for public transport to her new employment, a cost she would not have incurred had she not been forced to resign her position.
Respondent’s Submission and Presentation:
The Respondent has denied that the Complainant was constructively or unfairly dismissed. The Respondent submitted that the circumstances surrounding the case require it to be viewed in the context of marital breakdown. The Respondent submitted that a fraught interaction existed between the parties due the nature and context of an acrimonious marital breakdown rather than an employer/employee interaction.
The Respondent acknowledged that the inappropriate language used was not said as a campaign to remove the Complainant from her job. It argued that the difficulties were between the Complainant and her husband, a Director of the company, and not any other Co-Director of the company. The Respondent therefore contended this reflected the personal nature of the conflict rather than it being a campaign to get the Complainant to leave.
With reference to the Complainant stating that she was suffering from workplace stress and anxiety, the Respondent stated that as her husband he was also stressed as a result of the experiences and where he also would have been the recipient of inappropriate and personal comments of an intimate nature. In this regard the Respondent maintained the inappropriate language was used by both sides were the comments made by the Respondent were not in isolation, that the behaviour was displayed by both parties, and where they gave as good as they got. The Respondent also maintained that he found the behaviours from the Complainant hurtful and where he was also experiencing stress and had attended counselling.
The Respondent maintained that whilst the Complainant was good at her job, many of her allegations were fabricated. He contended that issues of a personal nature which were derogatory were also brought up by the Complainant in the workplace in front of others. The Respondent also argued that the business had suffered as a consequence of how the Complainant had behaved
The Respondent maintained that it did not take on another member of staff to replace the Complainant. The Respondent submitted that the new person was appointed due to the absences on sick leave of the Complainant and where the Respondent had to take on another member of staff to cover these absences. The Respondent argued that this person was only on a part time basis and it was only when the Complainant resigned that the person was then appointed.
The Respondent also argued that it understood that the Complainant in fact wanted to leave and it was on that basis it had received a letter from its accountant to advise it on the options available. The Respondent maintained that the Complainant would on the one hand say she was leaving and then on the other say she was staying. As a consequence, the Respondent argued that it had to manage this uncertainty, and address the conditions where it’s business was suffering due to the personal difficulties between the Complainant and one of its Directors.
The Respondent acknowledged it received a letter from the Complainant in January 2015 but that it did not respond to the letter. The Respondent acknowledged it did not have a grievance procedure, that it did not have an anti-bullying policy, and that it did not provide the Complainant with a written contract of employment.
In response to the deduction of €40 from the Complainant’s wage, the Respondent was not entirely clear what was the cause for this, but indicated if the Complainant was not there she did not get paid. The Respondent also inferred it may have been a deduction due to a change of in the tax allowance by €45.
Findings:
The breach of a contract of employment is a very serious matter and which in cases of unfair dismissal, requires an examination of whether an employer acted fairly. This test is a demanding one involving a mix of both procedural and substantive issues. The onus falls on the employer in such cases to justify any termination. In cases where an employee breaks the contract, and then seeks to pursue the employer for constructive unfair dismissal, as in this case, the bar is set just as high. Likewise, the burden of proof, which now passes to the employee, is set at a high level.
In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer is taken to mean something that is so intolerable as to justify the Complainant’s resignation, and something that represents a repudiation of the contract of employment. In this regard The Supreme Court has said that:
‘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.’ (Finnegan J in Berber v Dunne’s Stores [2009] E.L.R. 61).
In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour. In this case the Complainant has claimed that she was constructively dismissed as a consequence of the Respondent’s continuous intimidating behaviour towards her, and its failure to address the concerns raised by the Complainant, and particularly since January 2015 when the Complainant wrote to the Respondent about her concerns.
Having considered the evidence presented in the course of the hearing I am satisfied that there was a particularly difficult and acrimonious breakdown of a marital relationship between the Complainant and one of the Directors of the Respondent. It is clear from the evidence that the Complainant experienced regular and repeated personal verbal attacks and comments of highly inappropriate and sometimes degrading sexual nature from one of the Directors of the company. Whilst acknowledging that the basis of these comments may have been the cause of a marital breakdown the behaviours nonetheless clearly played out in the workplace environment. Whilst the evidence presented would also indicate that the Complainant may have behaved inappropriately towards the Co-Director of the Respondent (her estranged husband) I am satisfied that the evidence presented indicates an overwhelming amount of the inappropriate behaviour was perpetrated by the Director.
The evidence also supports that in January 2015 the Complainant wrote to the Directors of the company detailing her concerns and advising that she felt the intention was to force her from her job. This letter remained unanswered and the Respondent continued in its behaviour towards the Complainant.
I am therefore satisfied that the evidence suggests that the Respondent was put on notice regarding a range of inappropriate behaviours that the Complainant was experiencing specifically in the workplace. Whilst acknowledging it may have been difficult for the Complainant’s estranged husband to respond to this issue, there was nonetheless an obligation and responsibility for the other Co-Director on behalf of the Respondent to do so, but no action was taken to deal with the matter. In effect the evidence indicated that the Respondent stood by whilst the Complainant was exposed to a repeated and prolonged personal targeting by one of the Directors, and where a lack of reasonable response resulted in a complete breakdown of the trust between the Complainant, and the company and where the Respondent failed to address its duty of care in the workplace regarding the Co-Directors behaviours.
Specifically, the evidence presented in the course of the investigation, which was graphic and personal, indicated that a very hostile and intimidating relationship existed between the Complainant and her estranged husband. Whilst acknowledging that both parties may have engaged in the transactions that evolved between them, this behaviour remained unaddressed.
The Respondent argued that the nature of the relationship and what happened was as a consequence of an acrimonious marital breakdown between the parties and therefore inferred that it was not something that in the normal sense related to the workplace. Whilst it is not the role of the Adjudication Officer to review issues of a marital breakdown, it is clearly the role of the Adjudication Officer to consider issues in the context of the employment relationship, and clearly in this instant an employment relationship existed between the Complainant and the Company irrespective of the marital backdrop.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 8 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.
In order to prove constructive dismissal, the claimant must clearly show that there was no other alternative option open to her, other than leave her employment. It must be demonstrated that all reasonable alternatives have been considered. Whilst there was no formal grievance procedure in the company the Complainant did however write to the Respondent in January 2015 and no action was taken by the Respondent on foot of the concerns raised to address these concerns which were submitted in detail. Similarly the Respondent would have been aware of the nature of the Complainant’s sick leave, particularly after her short return to work in August 2015. I am therefore satisfied the Complainant has demonstrated she had no alternative but to leave her employment and was constructively dismissed due to the Respondent failure to address in any meaningful way the concerns she had raised in January 2015. As such I find the Complainant was unfairly dismissed.
Having found that the dismissal was unfair I must consider, in accordance with Section 7of the Act, that where an employee is dismissed and the dismissal is an unfair dismissal, the employee should be entitled to readdress consisting of either reinstatement, reengagement, or if the employee incurred any financial loss attributable to the dismissal, payment to her by the employer of such compensation in respect of the loss (not exceeding an amount of 104 weeks’ remuneration in respect of the employment for which she was dismissed) and is just and equitable having regard to all the circumstances. In accordance with Section 7(2)(a) of the Act, in determining the amount of compensation payable regard should be had to the extent (if any) to which the financial loss was attributable to an act, omission or conduct by or on behalf of the employer, and the measures (if any) adopted by the employee, or the case may be, her failure to adopt measure to mitigate the loss of the aforesaid.
In this regard whilst the dismissal was entirely attributable to the employer, and could have been avoided, I am satisfied that the Complainant made every reasonable attempt to avoid the dismissal. I therefore decide that compensation is the most appropriate remedy.
Upon her dismissal the Complainant has advised that she sought alternative employment, but was out of work for approximately two months. Since taking up employment she has suffered a loss of income amounting to approx. €6,526 per annum, plus two months wages amounting to approx. €3,840. Other benefits she has lost includes the use of a mobile phone, a diesel allowance and a Health Care contribution which formed part of her remuneration and benefits package and amounted to approx. €3,140 per annum. On that basis, and taking all factors into consideration, the Complainant is awarded €26, 500 as compensation for her unfair dismissal.
Dated: 14 February 2017