ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002854

Complaint for Resolution:

Date of Adjudication Hearing: 06/09/2016

Procedure:

In accordance with 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.

Attendance at Hearing:

                                                 An Office Receptionist V A Distribution Company

Complainant’s Submission and Presentation:

This is a claim for Constructive Dismissal. The complainant resigned her position by email on 12 February, 2016.

The complainant commenced work on a full time basis as a Support Office Receptionist with the respondent on 1 December, 2014. She had completed a Diploma in Office Management in 2014. The complainant told the hearing that she liked her job and was friendly with Mr A, the accountant and Ms OM (the office manager).

The complainant submitted that she had attended the Office Christmas Party on January 16, 2016. She learned from a colleague that there were about to be changes at “Support Office “level. The following Monday , the Managing Director of the company , Mr MD, announced at a staff meeting that Ms OM had accepted promotion to Office Manager .

The next day, the complainant accepted a lift to work from Mr A when her car was out of use .They discussed the staff meeting and announcement of the new Office Manager. The complainant told that hearing that Mr A started the discussion and that she had joked “ there goes my progression “ When they got to work the complainant submitted that “ banter “ transpired between them both and Ms OM .It was the complainants position that Ms OM was displeased by this approach . The complainant contended that she tried to wish Ms Om well and she was not annoyed that she had not got the position.

The complainant subsequently approached Ms OM where she learned that Mr A had shared the details of the “ car conversation “ with Ms OM and this caused her to be upset .There was a “clear the air “ meeting between the complainant , Ms OM and Mr A , which the complainant assumed was successful .

On the following Friday, January 22, the Financial Controller, Mr FC called a meeting of the trio to discuss the Office changes and he mentioned that “the office had a frosty atmosphere following the meeting the previous Monday “and sought some clarification on what triggered this? The complainant submitted that Mr FC then went on to explain the rationale for Ms OMs appointment and the complainant said she accepted this, wished there had better communication and told him that she was getting on with her work .

The complainant submitted that she met with the Managing Director on the following Monday, where she requested whether she could do her full hours over three days to facilitate her attendance on a college course .She was refused on the basis that a five day presence was deemed necessary for work .He made reference to the recent unease amongst the trio and asked if everything was ok? The complainant stated that she was informed that she was lucky a complaint hadn’t been made.

On the following Friday, January 29, the Operations Manager, Mr OM 1 apologised to both Ms OM and the complainant for the” poor manner in which the office moves and promotions were communicated “. The complainant denied that she had been unhelpful at work or had allowed the phones to ring out .She explained that there were new phone lines and there were a few mistakes on the sheet.

On Friday 12 February, Mr OM 1 approached the complainant and asked her to attend a review meeting with him .He said that this was something he did with everyone and advised the complainant to bring a witness .He suggested that Ms OM might act as that witness .The complainant told the hearing that she had not had a review with the company previously

The complainant attended the meeting later that day and responded to two review questions before being interrupted by Mr OM who informed her that the company was not happy with her performance over the last four weeks and had decided to terminate her employment by issuing three months notice and offered any help she needed with CV preparation, references and time off. The complainant submitted that Mr OM was unwilling to discuss the matter further but offered to meet the following week. He also suggested that it may be better for future employment if she handed in her notice “there and then”.

The complainant recalled that she was shocked and understood that she had been ambushed .She understood that she had found herself in a disciplinary meeting .She submitted that she told Mr OM1 that she was considering offering her resignation ,and he stated that he would accept it . Ms OM left the meeting on the instruction of Mr OM.

She went home and submitted her resignation by email giving two weeks’ notice. Mr OM rang her later that evening and confirmed acceptance of the resignation .When she sought the three month notice period, she was informed that it would not be paid as she had resigned.

The complainant had not worked as an employee since she left the respondent; however, she gave evidence on income generated from July 2016 in terms of self- employment and mitigation.

Respondent’s Submission and Presentation:

The respondent disputed the claim for dismissal .The respondent is a sales based company with 138 employees, six of whom were based in the Office .The complainant was recruited via a recruitment agency as a locum receptionist in the first instance ,followed by a permanent appointment 9 months later .

In January 2016, the company decided to introduce a new role to the office. In preparation, the Financial Controller was to move office location upstairs to accommodate the new appointment

In addition, the company made an appointment to Office Manager. Ms OM, who had previously been credit controller, was appointed by the Managing Director.

The respondent submitted that Ms OM, Mr A and the complainant fell out following this appointment. The respondent described the fall out as:

“ This fall out continued for a couple of days and led to poor communication ,was affecting work levels and (the complainants ) relationship broke down with her office colleagues “

Mr FC, on behalf of the company met with the trio on January 21, where he asked them to restore “co –operative “working relations at the Office.

On January 26, the Managing Director of the company received a call from the complainant’s mother where she informed him that she was angry that her daughter was coming home from work upset.

Mr OM1 confirmed that he had met with the complainant and Ms OM later that week in a bid to move forward and both members of staff agreed to “support each other in the period ahead.”

On February 2^nd, The Managing Director vetoed a request from the complainant to work part time to support attendance on a college course .The respondent told the hearing that the complainant’s behaviour changed after this and she distanced herself from everyone and adopted a “work to rule” approach. Ms OM held a meeting with the complainant and the new appointee to outline each person’s role.

Mr OM submitted that he phoned the complainant at 11 am on February 12 to invite her to an investigative meeting at 3pm that day in relation to her behaviour at work. He offered her the opportunity to bring a witness .She agreed to his suggestion of having Ms OM present as the witness. He advised the complainant that he had been charged with undertaking an investigation into her recent behaviour and where it seemed that her working relationship seemed to have broken down with the team. The complainant told him immediately that she had made arrangements to secure another job and planned to leave in May. Mr OM confirmed that he would press on with his investigation and suggested meeting for a disciplinary meeting on completion of his investigation the following Friday. He submitted that the complainant was upset and sought to excuse herself .Three hours later, he received an accepted a letter of resignation from the complainant. He followed this up by phone a thanked her for her contribution to the company.

The respondent contended that the trio of Ms Om, Mr A and the complainant “were like three peas in a pod “until January 18.

They asked the Adjudicator to understand that the complainant’s behaviour was unacceptable and inappropriate and left the company with no option but to pursue an investigation into the matter.

It was the complainants own decision to resign and they wished her well. The complainant was curt in her response to the follow up calls made by the respondent.

The respondent submitted written statements from

1 Statement of Mr FC         dated February 1, 2016

2 Statement of Ms OM     date February 25

3 Statement of Mr A           dated 29 January

Only Ms OM was in attendance at the hearing:

The respondent summarised the company position as all three , Mr A, the complainant and Ms Om were all victims in the breakdown of the working relationships from 19 January onwards .The company was clear that they had lost a good person and contended that they had tried hard to resolve the conflicts before the complainant resigned .

Evidence of Ms OM:

Ms OM described a very positive work relationship with the complainant where they went for lunch together every day. Mr A joined them occasionally .This change following her appointment as Office Manager on January 18, 2016.

She recalled being under pressure on the morning of January 19 to get work completed and she observed banter turn to snappy conversation from the complainant .She recalled that Mr A had told her that the complainant had rang him to collect her that morning, she had then informed him that she no longer had any prospects at the company, despite her having completed a course in office management. This surprised Ms OM as she and the complainant had talked at their cars the evening before without incident.

Ms OM approached the complainant for validation of what she had heard from Mr A. Ms OM submitted that the complainant began to “bawl and scream” about not having a future. Ms Om was concerned as the Auditors were upstairs .She had a “heart to heart “conversation with the complainant where she heard about her having done the management course.

Interpersonal relations deteriorated between them both after this .This caused her upset as she was grieving for her friend .An attempted reconciliation by Mr FC followed without success .There were no minutes of this meeting .

The atmosphere continued to deteriorate in the Office. She submitted that the complainant was always popping out and “just wasn’t there”. There was a plan to review the situation two weeks after the January 29 meeting . Ms OM commenced a Diary .These were notes on the people she was to manage.

She recalled the Investigative meeting of February 12 .She was informed of the meeting at 2.30pm and she recalled that Mr OM discussed the problems with the complainants behaviour .She recalled that the complainant told him she was leaving as she had a job lined up in June .She denied that Mr OM had mentioned termination of employment to the complainant. She confirmed that she had been concerned about the complainant’s mental condition and had raised her concerns with Mr FC.

She was devastated by the complainant’s departure and hoped that she would reconsider. Her position was not filled for a long time.

During cross examination, Ms OM confirmed that her statement was prepared in May 2016 and ended on Wednesday, February 10^th.

Ms OM confirmed that a two week follow up was agreed verbally post January 29 meeting and Mr OM told her about the planned February 12 meeting between 10 am and 11 am that morning.

She understood that the meeting was a grievance meeting . She had concerns about the complainant’s welfare. She was in the room for 5 minutes .In response to questions on the staff handbook , she confirmed that natural justice was a guiding principle in the procedure .She was a witness and not a representative .She was clear that the complainant was “ going to resign “. She suggested the installation of cameras to monitor the activities of the Office.

She denied that she was responsible for the “coolness” exhibited by the complainant. She was herself, alienated and stated that if the behaviour had continued it may have been Bullying. This was overtaken by the complainants resignation .She denied that the outcome had been pre determined by the company.

Decision:

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.

A claim for constructive dismissal places a very high burden of proof on the complainant as evidenced in Fitzgerald V Pat the Baker [1999] E.L.R.227 where the EAT alluded to

“Constructive dismissal, so called, derives from the definition of dismissal contained in section 1. Definition (b) reads:

notice of the termination was or was not given to the employer, in circumstances in which, because of the termination by the employee of his contract of employment with his employer, whether prior 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 I

This would normally be described as resignation, but under the conditions set down in the definition such a resignation is to be construed as dismissal. It is a dismissal by construction hence the words

‘Constructive dismissal’.

I have considered the evidence of the parties. I must now establish whether as in Fitzgerald

1. Did the actions of the respondent ground a constructive dismissal?

2. Was the complainant entitled to resign because of such conduct?

3. Was it reasonable for the complainant to resign?

I am satisfied that the complainant worked without incident with the respondent until January 2016.It was clear that she had formed a firm friendship with Ms OM .

I accept that the company does not have a formal Human Resource Department; however my attention was drawn to the robust staff handbook where I found that the company policy on promotion was detailed as:

“It is company policy to provide career opportunities for team members whenever possible and to encourage team members who wish to progress. Promotion will be at the discretion of management and will be based on ability and suitability for the position to be filled as determined by the company ………..X Company is an Equal Opportunity Employer “

I have found that the management of the elevation of Ms OM to the position of Office Manager constituted a “trigger event “in this case. There was a sharp lack of sensitivity shown to the complainant, which was subsequently acknowledged by the respondent and followed by efforts of “bridge building” up until January 29.

I accept that the complainant would have welcomed an opportunity to compete for a promotional position in line with company policy and perhaps she ought to have exercised a grievance in that regard? , This may have had the potential to separate the issue from the day to day operations which was reflected in the evidence as a cool and clearly combative period

. However the nett effect was a loss of trust between the trio of Ms OM, Mr A and the complainant and I must accept a loss of trust between the complainant and her managers. No grievance was activated.

Counsel for the complainant pointed me towards a lack of contemporaneous notes in relation to the recording of the key meetings in this case .The respondent acknowledged that there was a shortfall in this regard and drew my attention to the notes of January 29 meeting and statements submitted by Mr A, Ms OM , Mr FC . While I found that these documents had limited probative value given

1 They were unsigned and partially undated

2 It was not clear for what purpose they were gathered

They did not form the basis of the meeting of February 12 as in Ms Oms case, she had recorded an improvement in the complainants work based behaviour in the days before the meeting of the 12 February, In addition, she had recorded that she had informed Mr OM of an apology from the complainant to Mr A .There were shoots of equilibrium in the final paragraphs of her document.

I have been particularly struck by the sadness of Ms OM that she had lost a good friend due her acceptance of promotion .However; I found that the role of Mr A was significantly underplayed by the respondent. I appreciate that he left the company and was not available for the hearing but the “ car conversation “ was not reflected in his statement ,yet it formed a large part of the evidence of both the complainant and Ms OM and indeed the company’s understanding of the “ workplace spat “ of January 19 was largely informed by Mr A.

I went on to find a number of inconsistencies in the respondent evidence .There was a clear conflict in the recording of January 29 meeting of the respondent and the oral evidence given by Mr OM in representing the company .It was not detailed that January 29 meeting was to be followed up in two weeks . There was considerable conflict at the hearing on the genesis of the 12 February meeting. I have resolved this conflict in favour of the complainant in terms of her understanding that it was to be a review meeting, which she interpreted as a performance review. If Mr OM and Ms OM had an understanding that the January 29 was a first step in the process, I could not find that they shared it with the complainant . The company had every right to ensure a high performance from its employees, however procedural progression needs to be mutually understood.

I find that the respondent convened a meeting within the spirit and intention of the “ Team Member Discipline Policy “ without the required antecedent preparation of either an informal approach or reliance on the guiding principles of natural justice /due process on February 12. I believe that it was the intention of the respondent to terminate the complainant’s employment on that day and this was misrepresented as a review meeting

. I say this because in addition to the evidence of the parties, I referred to the respective reference to” a three month period of notice” .The complainant told the hearing that this constituted the first offer made by the company .The respondent referred to a loose reference to three months’notice that was overtaken by the complainants own voluntary termination within three hours of the February 12 meeting . I am particularly struck by the subsequent phone calls from the respondent to the complainant over the 24 hrs post the meeting .I found some guidance in a copy of an email dated 18 February 2016 from Mr Om to the complainant.

“ You and I did have a discussion about ending your employment in three months time, however this no longer applied when you resigned given February 26 as your last day “

This, in my opinion resolves the conflict in the complainants favour. It confirms that the conversation was between two people, reflective of the complainant’s reports that there were two parts to the meeting of Feb 12. One witnessed and one unwitnessed. Minutes of this February 12 meeting, had they been available would have assisted me greatly. I accept that the complainant did not have another job to go to.

I accept that the complainant presented as a management challenge in the weeks post-dating the announcement of the Office changes. However, I find that from the evidence adduced, that the meeting of February 12 was precipitous and deficient in respectful employee relations.

There was sufficient provision to address discord in a small working environment within the company procedures

I appreciate, that with the exception of the complainant , Ms Om and the new appointee , the remaining staff were male in the Office and I accept the respondent position in suggesting that Ms OM accompany her to the meeting in a company that was 80% non-Union , however , the complainant had a right to know in advance what the meeting was about and be given time to prepare by either securing a representative of her own choosing or by preparing her own response .I have found that the respondent did not identify a complainant , or a statement of issues necessary to serve as the foundation for this meeting .It was entirely subjective .. I find that there was a serious departure from the principles of natural justice and fair procedures.

In MacLehose V R and G Taverns [1999]10 ELR 180, the EAT determined that an Unfair Dismissal occurred following insufficient evidence, investigation and testamentary evidence of employees.

I have considered this case in which some of the circumstances have been distinguished to guide me on the high bar placed before the complainant in this case. I have found an analogy, however on the stated impact of the employer’s actions on the worker.

It is not my role to instruct either party in this case on what they should have done in hindsight .I have considered the evidence and applied the law to the facts.

I have found that the actions of the respondent during the 6 week period of early 2016 were sufficient to ground a Constructive Dismissal. I accept that the complainant did not utilise the grievance procedure.

The Labour Court in A Worker (Mr O) v an Employer No 2 [2005] ELR 132. Found that

“Invocation of the grievance procedure is not a fixed or universally applied rule and there can be situations in which not to give prior formal notice of grievance will not be fatal “

I find this is such a case given the events of the meeting of February 12.

I find that the mutual bond of trust and confidence between employer and employee had broken down entitling her to leave her 14 month employment with the respondent.

In considering redress I find that I cannot penalise the respondent for the decision of the complainant to try self- employment from July 2016.

I order the respondent to pay compensation in accordance with Section 7(2) of the Act to the amount of €15,528 (the value of 6 months’ salary) .In addition; I would respectfully suggest that the respondent reviews the company promotions policy to incorporate the equal opportunity rider.

Dated:   26^th January 2016