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-00008593-001

05/12/2016

The Complainant was employed   by the Respondent as a Sales Assistant from 12 May 2007 to 28 November 2016   when she resigned from her role. The   Respondent trades as fuel distributer.

The Complainant has filed   two separate claims against the Respondent in relation to the same matter. The Complainant has filed an industrial   relations claim on 11 October 2016.   She subsequently filed an Unfair Dismissals claim on 5 December 2016   following her resignation on 28 November 2016.

In her complaint forms, the Complainant states that she   was bullied and victimised by her co-workers.   She claims that this resulted in her being absent from work on sick   leave from April 2016 until she resigned in November 2016. She claims that   she made a complaint in relation to this behaviour but that her complaints   were ignored. She states that the   Respondent only took action once she resigned from her position. This is denied by the Respondent.

The complaint filed under the Industrial   Relations Act 1977 clearly outlines how the Complainant alleged mistreatment occurred   which led to her resignation.   Therefore I will not be issuing a recommendation under the Industrial   Relations complaint. Her submissions   will be taken into account under the complaint filed under the Unfair   Dismissals Act 1977.

That she is the only female employee working in the   depot. That she made a complaint about   one of the drivers standing over her for hours every day. That she made a complaint about this matter   to her supervisor on a number of occasions, but nothing was done about it.   That she took a week off for annual leave and when she returned to work she   found that the driver was not speaking to her. She found this atmosphere very   unsatisfactory and in April 2013 she spoke to her manager and told him that   the driver was not speaking to her.     The manager did speak to the driver and advised not to be coming into   the office. This behaviour continued for a significant period of time. Things further deteriorated since then and   3 other members of staff do not speak to her, and one of these is a   supervisor. She become very upset and   she told the manager that she felt that she was being bullied and   victimised. He said that it is “3   against 1” and that she was the reason for the problem. He told her “not to involve head office as   it would cause too many problems in the workplace”.

In April 2016, she took 1 week holidays. She was unable to return because she felt   ill. She attended her GP and he   certified her on sick leave. Human   Resources made contact with her as a result of her being on sick leave. She had a meeting with Human Resources and   she told them everything that had occurred to her in the workplace. This was the first time that they were   aware of the problems. Human Resources   sent her to the company doctor who deemed that she could return to work,   however she was uneasy about this and as a result of a visit to her own GP,   he advised that it would not be appropriate that she return to work.

She felt that she could not return to work because of the   behaviour shown to her by her work colleagues. She felt that she had no option but to   resign from her position as she had already made numerous complaints and   nothing was done about it. She has   attempted to find work since she left her employment without success.

As soon as the Respondent became aware that there was a   problem in the workplace in relation to the Complainant, they immediately   became involved in attempting to resolve the matter. The Complainant was on long-term sick leave   from 1 April 2016 until the date of her resignation on 28 November 2016. As a part of the Respondent’s absence   process, the Complainant was asked to attend the Respondent’s Occupational   Health Physician in May 2016. It was   during this process that the HR Team became aware that he Complaint had   inter-personal difficulties with her co-workers.

On 31 May 2016, Ms DR, Human Resource Generalist,   contacted the Complaint and provided her with details of the Respondent’s   Employee Assistance Programme.

On 10 June 2016, Ms R met with the Complainant and   provided her with copies with the Grievance Procedure and Dignity in the   Workplace/Bulling and Harassment Policy.   Ms R explained the options available in terms of progressing her   complaints through either ran informal or formal grievance process. Ms. R explained that an informal grievance   could include mediation and she informed the Complainant that HR would work   to resolve issues once the Complainant decided how she wished to proceed.

Following the meeting, Ms R email the complainant on the   22 June 2016 summarising the meeting as follows:

“Please rest assured   that the Company takes such matters seriously and that your wellbeing is of   great importance to us. I’ve provided   you with our Grievance and Dignity at Work policies at our meeting. I hope you’ve read through them. If you have any questions in relation to   these please don’t hesitate to contact me.

Given the nature of   the situation and as we discussed we won’t take action until we hear from you   regarding your decision on how you would like to proceed from here. We will do our best to resolve things as   smoothly as possible. If you have   thought about your options and come to a decision please let me know and I   could meet you again if you wished to discuss that in more detail….Hope you   feel better and I look forward to hearing from you. If you have any questions or queries please   don’t hesitate to contact me at any time”.

Ms R continued to engage with the Complainant with   correspondence in the following weeks.   On 14 September 2016, when arranging another occupational health   assessment, Ms. R wrote

“I do hope that you   are feeling better and are on the road to recovery. We would love to see you get back to full   health and we’d be delighted to have you back in work. Please know that we are dedicated to making   your transition back as smooth as possible and we will be there to assist you   every step of the way.

I will be in touch   with you again after the medical review in order to discuss the report and   our next steps. However, if you’d like   to engage with us sooner regarding facilitation of your return to work, any   questions, queries or issues you might have please feel free to contact me at   any time”.

The Complainant was ultimately deemed fit to return to   work on 28 September 2016.

“Thank you for   attending the doctor this morning. We   received some feedback from the doctor saying that you should be fit to   engage in return to work process which is very good news. I’m glad that you are feeling better.

In order top start   the process I was hoping that we could meet sometime soon either before the   end of this week or early next week. I   would of course come to meet you. If   you could perhaps suggest a day and time that would suit you and I will do my   best to meet you then”.

The Complainant emailed Ms. R on 5 October 2016 expressing   reluctance to return to work as she felt that she had tried the previous year   to resolve matters with her manager but that he was of no help to her. In response, Ms. R emailed the Complainant   on 7 October 2016 to address her concerns and encouraging her to engage in a resolution as follows:

“As I assured you   before we are here to ensure that your return to work is smooth, I outlined   to you that there are several routes that you can take in order to address   the alleged issues you have mentioned and I strongly encourage you to engage   with me in relation to that. I am here   to assist you but I need you to let me know what direction you would like to   take.

We are here to   ensure safe working environment for you and I would advise that we decide on   what steps you wish to take and we plan out your return to work process as   soon as possible. I assure you that   you will not be alone throughout this process and that we can together work   out the best approach and best plan for your return. I am inviting you to a   meeting on Wednesday 19^th October at 10am. If you cannot attend at the time, please   contact HR”.

On 11 October 2016 unbeknownst to the Respondent and   before the meeting which had been scheduled for the 19 October 2016, the   Complainant filed the Industrial Relations claim. The Complainant subsequently emailed Ms. R.   on 17 October 2016 informing her that the internal procedures were not   acceptable to her and that she had referred the matter to the WRC.

When the Respondent was disappointed that the Complainant   did not want to use the internal Grievance Procedure or Dignity at Work   Policy, in an effort to resolve matters, it agreed to an industrial relations   referral to the WRC. In fact, the   Respondent wrote to the WRC on 1 November 2016 requesting that the matter by   dealt with as soon as possible given the serious nature of the matter. The Respondent also noted that it would   welcome the opportunity to engage in mediation. The Respondent was very   hopeful that he Complainant would engage if an external mediator was made   available to it by the WRC.

Unfortunately, the Complainant resigned on 28 November   2016 before the mediation/IR hearing was scheduled to take place. The Complainant was urged to reconsider her   resignation and the Respondent asked to meet with the Complainant again to   discuss the matter.

Even after the Complainant resigned, the Respondent wrote   to the WRC again asking if a mediation/hearing meeting could be   expedited. The Respondent kept the   Complainant updated at all times and encouraged the Complainant to also write   to the WRC requesting an expedited hearing/mediation. However, on 5 December 2016 the Complainant   informed the Respondent that she would not be withdrawing her resignation,   that she found another position and it was her intention to file a claim for   constructive dismissal.

It is clear from the correspondence that significant   efforts were made to resolve matters internally. When the Complainant expressed a concern   regarding participating in an internal resolution, the Respondent agreed to   engage in an external IR process including mediation. The Respondent wrote to   the WRC asking them to expedite the matter.   All of this occurred before the Complainant resigned and before the   Complainant filed the Unfair Dismissal complaint.

Based on the evidence presented by both parties at the   hearing I find as follows:

The Complainant experienced problems with 3 members of   staff in her workplace over a significant period of time. Local management did not address these   problems efficiently and effectively.   The Complainant should have been provided with the Grievance Procedure   and Dignity in the Workplace/Bulling and Harassment Policy by the local   manager. For his own reasons the local   manager did not escalate the complainant’s concerns to Human Resources, he   should have done so.

When Human Resource got involved they attempted to   actively engage with the Complainant to resolve her grievances. However she found the atmosphere in the   workplace too difficult to continue working there. This was due to the fact that local   management appeared to have no training in dealing with inter-personal issues   and she had lost confidence in their ability to do so.   As a result she felt that she could not return to work in that location.

The Complainant was requested   to provide evidence of the efforts she made to mitigate loss by finding   alternative employment. The Complainant subsequently provided evidence in   this regard to the WRC. The Complainant has provided the WRC with screenshots   of her online account with “jobs.ie”.   The screenshots purport to show that the Complainant applied for 9   positions. It does not disclose the   date that the applications were made. Therefore it is not possible to   determine when the applications were made. The may have been made prior to   the Complainant resignation prior to 28 November 2016 as she gave evidence at   the hearing that she was looking for alternative employment before she   resigned from her role with the Respondent.   It is possible that the applications were made following the hearing   on 28 February 2017.

I note that the Complainant was   accepted onto CE Scheme with Lifestyle Development Group in February   2017. She was in receipt of sickness   benefit which was confirmed in an email by the Complainant to the Respondent   solicitors on 15 February 2017 and later during the hearing. No evidence has been provided as to the   efforts made by the Complainant to progress the 9 applications. It is well established that Claimants are   required to make significant efforts to find alternative employment. In the   Employment Appeals Tribunal case of Tadgh   Sheehan v- Continental Administration Company Limited [UD858/1999]:

“In these days of rapid Word-processed Curriculum Vitae, it is not   reasonable to merely swamp every conceivable source of employment with   applications. Moreover, it is not   reasonable to merely place yourself upon a list of various recruitment   agencies. A more pro-active approach   must be adopted nowadays. In the   nineteen-sixties it may have been reasonable to adopt these steps….A claimant   who finds himself out of work should employ a reasonable amount of time each   weekday in seeking work….. It is not enough to inform agencies that you are   available for work nor merely to post an application to various companies   seeking work….. The time that the Claimant finds on his hands is not his own,   unless he chooses it to be, but rather time to be profitably employed in   seeking to mitigate his loss”.

I find that the Complainant did not find sufficient   efforts to find alternative employment.

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.

Based on the evidence presented   at the hearing, I find that the complaint is well founded in that the   Complainant was constructively dismissed from her employment.

Taking all of the circumstance   into account I order the Respondent to pay to the Complainant €1,200 for   breaches of Section 8 of the Unfair Dismissals Act 1977. This sum must be paid within 6 weeks of the   date of this decision.