ADJ-00005169

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005169

Complaint for Resolution:

Date of Adjudication Hearing: 4th January 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Sections 80 and 41(4) of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977, following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute 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:

Background:

The Complainant was employed by the Respondent from 5^th May 2009 to 2^nd June 2016 and her weekly rate of pay was €402.00c.

The Complainant was submitting that she had been constructively dismissed by the Respondent and the Respondent was denying the complaint.

Summary of Complainant’s Case:  

The Complainant said that she commenced employment with the Respondent on 5^th May 2009 as a Production Operative.

The Production Manager was the Complainant’s direct manager and the Managing Director was the overall manager.   The Complainant said that both of these managers bullied and harassed her to the point that she had no choice but to terminate her employment.

The Complainant said that she did not receive a written contract of employment or an Employee Handbook at the start of her employment and she only received these on 14^th May 2012.   She said that she never received formal training and that other employees would explain to her what to do.

The Complainant said that from the beginning of her employment with the Respondent the Production Manager largely ignored her.   If he did communicate with her it was in a very aggressive and abusive manner.   When she had finished working on a piece/item she had to show it to the Production Manager for his approval and to find which piece to work on next.   She said the Production Manager would often ignore her and tell another employee to give her a piece to work on and on other occasions he would throw the piece at her.   She said she found this distressing as the other employees were aware he was treating her in this fashion.   She said that he would also refer to her in derogatory terms when speaking to other employees.

She said that for example within the first 3 weeks of her employment she said “good morning” to the Production Manager and he snapped back “what’s good about it?”.   She said that on another occasion he asked another named employee to go to the loft and he said “if your associate is awake she’d be of any use to you”.     The Complainant said this was just 2 examples of how the Production Manager referred to her and spoke to her.

The Complainant said that within the first 6 months of her employment with the Respondent the Managing Director (MD) enquired of her how she was getting along.   She told him she was happy with the work, but that however she found the Production Manager’s behaviour very upsetting.   The MD stated that while the Production Manager was good for the Company he was not good for the employees.   The Complainant said that she took from this that the MD was aware of the Production Manager’s behaviour and condoned it.   The MD never indicated to the Complainant that he would speak to the Production Manager’s or investigate his behaviour or the Complainant’s complaints and that no further action was taken as a result of this conversation.

The Complainant said that on occasion she had to operate a sewing machine; she had no experience of this type of work and received no training on it.   She said that due to the wrong thread being used, black thread would show through items.   The Production Manager would get very angry at her when this occurred.   After the Complainant stopped doing this work the Respondent employed an experienced sewing machinist specifically for this task, who asked that specific thread be used which solved the problem.

The Complainant’s said that one of her tasks was to fold scarfs and she said that while doing this the Production Manager would constantly make demeaning comments, such as was she “going to be there all day.”

The Complainant said that in 2012, she was moved to the Weaving Shed as another employee had left the employment.   She said that while the Production Manager still had oversight of this area, a named person supervised it.   The Complainant role was to ensure 8 looms were working.   She had no experience in this and she received no training.   She suggested that she focus on one loom until she got used to it, but the Supervisor would not agree to this and insisted that she operate 8 looms at one time from the start.  She said that from the start he was very aggressive and abusive to her.   The Complainant said she told the Supervisor she could not work under him and she returned to her previous job. The MD approached the Complainant and asked what had occurred. The Complainant stated the verbal abuse she had experienced under the Supervisor and she stated that if the MD would provide her with a reference she would leave the employment.   The MD stated that he had heard the Supervisor was a bully, but never believed it until then.   The MD asked the Complainant to continue in her previous job, which she did.

She said the Production Manager and the MD continued to bully and harass her as previously.   For example the Complainant’s working day did not begin until 8.00am.     On one occasion the Complainant was talking to another named employee at approximately 7.45am at the workplace, the MD approached them and roared at them were they “trying to fucking close the place down.”   The Complainant found the many incidents like this very distressing.

The Complainant said that on many occasions she would ask the Production Manager to change the needle in her machine as he was the one who did so.   He would be extremely aggressive and abusive to the Complainant while changing the needle in her machine.

On one occasion a named employee brought a piece/item to the Complainant to work on; the Production Manager followed him and shouted “what the fuck are you doing?”.   The employee went back to his machine and the Production Manager continued to curse at the Complainant.

The Complainant said the Production Manager chooses the employees who did overtime and he never asked her and she said this was another example of her being isolated.

The Complainant said her machine was not maintained while others were.   In 2015, the rubber seals on the machine had eroded exposing the metal base (photographs provided to the hearing).   As a result the Complainant had to hand-tie the fringes on some items and often she had to hand-tie 30 fringes on one item.   She said that this caused her significant pain in both her elbows.   Despite reporting this to the Production Manager and asking to have the rubber seals replaced it was not done.   The Complainant said that it was only after she informed the Production Manager that she was going to her Doctor due to the pain in her forearms that replacement rubber seals were fitted to her machine.   She said that neither the MD or the Production Manager ever enquired about her elbows despite being aware she was attending her GP.

On one occasion the Production Manager called the Complainant and showed her a baby’s blanket she had put the fringes on; he screamed at her “what’s wrong with this?”  

The Complainant looked at the fringes and said “nothing”.   The Production Manager pointed to the sides, where it had slightly turned in.   The Complainant explained that this had nothing to do with her.   (Photographs submitted to the hearing).

The Complainant said that her machine was inside the door to the premises; this door opened out to the Loading Area and there was a heater over the door.   In September 2015, this heater stopped working.   The Complainant said that despite asking the Production Manager on numerous occasions to get the heater fixed it was not fixed.   She said that on one occasion he responded that if it was fixed she would fall asleep altogether.   The Complainant said that as a result of the draught she developed a very serious ear infection that has resulted in ingoing issues for her.   A Medical Report and photographs were submitted to the hearing).

The Complainant said that at this point the bullying and harassment from the MD and in particular the Production Manager was so bad that she began to feel nervous when they were around.   The Complainant said that her output increased significantly when the Production Manager was off work.   She said that on one occasion after the Production Manager had reprimanded her she was so upset she walked into the Men’s toilet without realising it.

In February 2016, the Complainant’s machine had a fault; another named employee was looking at it with her.   The MD passed by them and then came back.   The other employee went back to her machine.   The MD said to the Complainant “how many fucking pieces have you done today?”.   She replied “I haven’t left my machines all day”.   The MD returned to his Office; upon his return to the factory floor the Complainant asked to speak to him, wishing to discuss the way he had spoken, but he kept walking and said “I’m fucking busy.”   As the Complainant was clearly upset another employee got the Production Manager, who simply told her to “settle down, settle down”.   The Complainant then left the premises.

That evening the Complainant felt very depressed and was feeling suicidal about returning to work and she was also suffering from a throat infection.   The following day she attended her GP and was prescribed antibiotics and antidepressants.   She remained on antidepressants for approx. 3 months.

A week after she left work the MD rang the Complainant enquiring why she had not returned to work and she told him that she was sick.   The MD responded “I thought it might have been what I said to you last week.”.   Subsequently, the MD rang the Complainant to enquire when she was returning and he accepted that the draught from the door needed to be sorted out.   On the next and final occasion that the MD rang the Complainant he told her that the Company would cover her medical expenses, but they have not done so.    

The Complainant remained on Sick leave until 2^nd June 2016, at which stage she wrote to the Respondent terminating her employment solely due to the bullying and harassment that she had been subjected to.   The Respondent replied on 24^th June 2016, stating inter alia that the Complainant’s job would remain open and that an independent investigation would be carried out into her Complainant’s complaints.   The Complainant did not respond to this as she believed there was no point in the MD investigating himself or the Production Manager when he approved his behaviour.

The Complainant quoted the definition of workplace bullying contained in S.I. No. 17 of 2002, the Code of Practice of Procedures for Addressing Bullying in the Workplace.   The Complainant said that clearly what occurred in the instant case was not a ‘once off’ incident and she has been the victim of systemic and ongoing bullying and harassment from the Respondent’s managers.

The Complainant said that she terminated her employment with the Respondent as is her right in accordance with Section 1(b) of the Unfair Dismissals Act 1977 as amended, which the Complainant quoted from.

The Complainant referred to and quoted from Labour Court Determination DWT 68/2014 in Paris Bakery & Pastry Limited -v- Mrzljak in support of their position.

The Complainant said that the tests that have to be considered are the Contract Test and the Reasonableness Test.

The Complainant said that she was employed by the Respondent for 6.5 years.   She said she was a diligent worker who loved her job and took great pride in her work.   She did not wish to leave her employment with the Respondent and it is clear the Respondent ensured such hostile environment that forced her to leave her job.

The Complainant quoted from the description of the ‘contract test’ as described in Western Excavating (ECC) Limited -v- Sharp [1977] EWCA Civ J1 114 in support of their position.

The Complainant submitted that the Respondent was guilty of a number of fundamental breaches of the contract of employment by:

1. Exposing the Complainant to unsafe work practices by virtue of long periods of hostility

2. Exposing the Complainant to unsafe work practices by failing to maintain her machine

3. Exposing the Complainant to unsafe work practice by continually exposing her to a severe draught

4. Exposing the Complainant to continuous bullying and harassment

5. Ignoring repeated grievances made by the Complainant

6. Not complying with their own grievance procedures

7. The Respondent and/or their servants and/or agents behaviour was such as to cause a breach of trust and confidences between the Complainant and the Respondent

The Complainant said that in relation to the Reasonableness Test it is whether of not the conduct of the Respondent is so unreasonable that it entitles her to treat the contract as being at an end and justifying her involuntary resignation.   The Complainant referred to and quoted from the Labour Court Determination in An Employer -v- A Worker (2005) 33 ED 02/57 EED 0410 in support of their position.

The Complainant submitted that the Respondent breached the Reasonableness Test by

1. Placing the Complainant under continuous stress and pressure

2. Ignoring the Complainant’s repeated grievances

3. Creating a hostile working environment

4. Allowing their employees to bully and harass the Complainant

The Complainant said that due to the constant bullying and harassment she underwent her working life was made unbearable to the point where it was reasonable for her to terminate her contract of employment.   The Complainant referred Sinnot -v- JC Takeaway [2003] UD 780/2004 in support of their position.

The Complainant said she attempted to use the Respondent’s Grievance Procedure on a number of occasions, such as when she told the MD about the Production Manager’s behaviour; but the MD did nothing about her concerns.   The Complainant said she had also complained about the Supervisor’s behaviour towards her, but her complaints were never investigated; she took it upon herself to move back to her previous position.   She said that the Grievance Procedure was not followed on either of these occasions.  

The Complainant said that with regard to the MD’s behaviour there was no one to report to as he was the most senior manager.   She said that in February 2016, she attempted to discuss the MD’s treatment towards her, however he would not engage with her stating he was “fucking busy”.

The Complainant said that this is similar to the position that arose in Liz Allen -v- Independent Newspapers [UD641/2000 - 2^nd August 2001]   The editors asked Allen to take over the social column when the previous writer retired.   She refused the attempts to bully her into it.   She reported the bullying to senior management; they were participating in the bullying and therefore did not investigate it at all.   She left the employment.   The Employment Appeals Tribunal (EAT) concluded that there was nothing else for her to do; she had reported it and tried to solve it.   Given the timeframe involved and the pressure she was coming under, she could not have done more before the time of the termination of her employment.

The Complainant said that the only appropriate redress where there is a fundamental breach of the employer/employee relationship is compensation as reinstatement is not appropriate.    

The Complainant said that due to the stress caused by the situation they are of the view that she should be awarded compensation for the stress the Respondent’s actions have caused her.   The Complainant said that in Liz Allen -v- Independent Newspapers Limited, the EAT awarded Ms. Allen compensation for stress suffered as a result of the constructive dismissal.

The Complainant said that based on the foregoing she sough a finding and decision that she was unfairly dismissed in accordance with the provisions of Section 8 of the Unfair Dismissals Act 1977 as amended and a requirement that the Respondent pay the to her compensation of such amount as the Adjudication Officer shall consider just and equitable having regard to all the circumstances.  

Witness No. 1.   A Witness gave evidence in support of the Complainant’s case.   The Witness said that he was a former employee of the Respondent and had worked for the Respondent for a period of 11 weeks and he confirmed that he left the employment because of adverse conditions.   He said that he had never previously experienced such work conditions, with workers being treated and spoken to the way he saw and experienced in this employment.

In relation to the alleged treatment of the Complainant by the Production Manager the Witness said that he directly was a witness to the following 3 incidents involving the Production Manager and her.

The Witness said that within the first 3 weeks of his employment he was witness to an incident in which the Complainant wanted a needle changed in her machine and she asked the Production Manager to do this needle change.   The Witness said the Production Manager responded very aggressively to the Complainant and aggressively said to her “what the fuck do you want now?”.   He said that the Production Manager was very abusive to the Complainant.

The Witness said that he subsequently was a witness to another incident involving the Complainant and the Production Manager that was very similar to the first one and again the Production Manager was aggressive and abusive towards the Complainant.

In relation to the 3^rd incident the Witness said that he was bringing items to the washing machine to be washed and he asked the Complainant did she want or need any items washed.   He said the Production Manager came on the scene and again he was cursing and swearing and very aggressive towards the Complainant and was very abusive to her.

The Witness said at his interview for the job he was told that that nobody had any particular specific job and could be asked to perform various jobs.   He said he was surprised to be told at interview by the Production Manager that “I get loud on the factory floor ….. well I have targets to meet.”

The Witness said that there were 3 employees treated differently by the employer and in particular the Production Manager, himself, the Complainant and another named former employee.

The Witness said that when he happened to meet the Complainant in early June last, he discussed her position with her and he offered to give evidence on her behalf.  

The Witness answered question from the Respondent.

The Complainant gave evidence in support of her complaint.   Her evidence largely supported her written submissions.

The Complainant said that she had two incidents with the Managing Director.   She said that from Day 1 she had problems with the Production Manager that she described in some detail.   She said that he was behaving aggressively and abusively towards her, he was cursing and swearing at her, etc, etc.   She said that she was bullied and harassed by him to such a degree that her health was effected and she felt totally miserable at work due to the way she was treated at work that she had no alternative but to terminate her employment with the Respondent.

In response to questions from the Respondent the Complainant confirmed that she had previously worked in restaurant for 2/3 years.   She confirmed that the MD had offered her the job with the Respondent of his own violation because he knew and liked her (as distinct from her seeking or applying for it).  

The Complainant in response to questions confirmed that from the time of the termination of her employment she was on Social Welfare Illness Benefit and remains on that Benefit and expects to remain in that position and that accordingly had not been available for work and that thus could not be said to have suffered any loss in earnings due to the termination of her employment.

Summary of Respondent’s Position:

The Respondent was rejecting and denying all of the Complainant’s complaints.

The Respondent said that the Complainant commenced employment with them on 5^th May 2009, as a Mill Operative, reporting to the named Production Manager.   She was provided with a contract of employment that included her list of duties; she was performing in 7 different areas within the Company.

The Respondent said that in May 2012, the Complainant was transferred to the Weaving Shed on a temporary basis due to the reduction in the level of work within the Company.   After approximately 2 weeks there the Complainant spoke to the Managing Director (MD) and informed him that the named Supervisor of the Weaving Shed was giving her a hard time.   The MD then made the decision to move the Complainant from the Weaving Shed straight away and also spoke to the Supervisor, who then apologised to the Complainant.

On the 28^th January 2016, the MD noticed that the Complainant was engaged in a conversation instead of working.   When the MD queried with the Complainant about the number of pieces/items that she had fringed that day she replied that she had done a good few, to which he responded he did not think that was the case.   The Respondent said that on the following day the Complainant did not attend for work and she submitted a sick certificate from 29^th to 31^st January 2016.

In February 2016, the MD rang the Complainant to discuss her absence from work.   During this telephone discussion the Complainant indicated that she felt that the Production Manager was giving her a hard time.   The MD queried why the Complainant had never raised the issue prior to this discussion and he informed her that her job remained open and the matter would be resolved.

In March 2016, the MD again telephoned the Complainant to see how she was and to enquire when she would return to work and she responded that she had medical issues in relation to her ears.   The MD offered to assist her in her medical bills as she was off from work sick.

The Complainant sent a letter of 2^nd June 2016 to the Respondent informing of her decision to terminate her employment with them as a result of bullying and harassment to which she alleged that she had been subjected to throughout her employment.   The MD replied by letter of 24^th June 2016, in which he expressed his surprise at her resignation given that she had not raised any bullying or harassment issues during the course of her employment.   He also urged her to reconsider her decision and he stated that her job would remain open to her for 4 weeks and he further stated that he would undertake to carry out an independent investigation into complaint upon her return to work.   The Respondent said that however, unfortunately she did not take up the offers.

The Respondent quoted from the definition of constructive dismissal as defined in Section 1 of the Unfair Dismissals Act 1977.

The Respondent said that from the Complainant’s Complainant Form it seems that she is relying on the so called reasonableness test of constructive dismissal to support her complaint.   The Respondent said it is well established that in order for a complainant to be successful in a claim for constructive unfair dismissal they must establish this test.

The Respondent said that in the instant case they contend that this was not the case and that accordingly the Complainant has failed to meet the requisite burden of proof and in that respect the Respondent submitted the following.

In order to satisfy the reasonableness test it must be established that the Respondent acted in such an unreasonable manner that the Complainant had no alternative but to terminate her employment.   The Respondent said that in the circumstances they would submit that it is not possible for the Complainant to establish this, as the fact of the matter is that she was treated in a fair and reasonable manner at all time throughout her employment and accordingly was not entitled to dismiss herself.   The Respondent said as proof that she was always treated in a fair and reasonable manner they would quote the issue between herself and the Weaving Shed Supervisor.   The Complainant believed this Supervisor was giving her a hard time and thus the MD made the swift decision to move her from under the Supervisor’s management to avoid any issues and he further spoke to the Supervisor who then apologised to the Complainant.  

The Respondent said they categorically deny the Complainant’s claims that she was bullied and harassed by the MD and the Production Manager and instead that the contrary is the case.   They said were that the case the Complainant would not have opted to remain in the employment and work as many hours overtime working as she did.   The Respondent further submitted that if it were the case that she was bullied and harassed at work that they would have been in receipt of medical certificates stating the level of stress she was under; but they did not receive any such medical certificates.   Therefore, the Respondent insists that the Complainant be put on full proof of these allegations of bullying and harassment.

The Respondent said that furthermore it is well established that in cases of this nature there is a requirement to take into account the conduct of both the employee and the employee.   The Respondent said the Complainant never raised any bullying and/or harassment issues during her time with the Respondent.   The Respondent said the Complainant engaged in friendly conversation with the MD most Fridays and she also undertook a significant amount of overtime; 126 hours in 2014 and 115 hours in 2015.   The Respondent said that therefore they were given no indication of the Complainant’s apparent unhappiness in her job as she would not have offered to work extra hours if this were the case.   The Respondent said the Complainant’s willingness to remain in work is an obvious indicator that she was happy within the Respondent Company.

The Respondent said that it is also critical to the Complainant’s case that she try to resolve matters internally in the first instance.   The Respondent said that at no point prior to her resignation did the Complainant ever raise a grievance with the Respondent.   This is a fact that demonstrates that the Complainant never attempted to help resolve any issues she had.   The Respondent said that the Complainant was fully aware of the Respondent’s Grievance Procedure and she was issued with a Contract of Employment and a Company Handbook containing these.   The Respondent said that they put all efforts into resolving the problems that existed, such as holding the Complainant’s job open in the hope she would return to work instead of resigning and also promising to carry out an Independent Investigation in her complaints upon her return to work.

The Respondent said that the early issues raised by the Complainant should be discounted as they were/are so remote from her resignation.

The Respondent pointed out that the Complainant had confirmed in her direct evidence that she had been provided with, was fully aware of and familiar with their Grievance Procedure and Bullying and Harassment Procedure.   They further pointed out the Complainant had confirmed that despite this she had never invoked or sought to invoke those procedures. They said the Complainant had signally failed to make any efforts to avail of procedures available to her to resolve any workplace issues she had and had failed to allow them any opportunity to deal with any such issues.

The Respondent said that there was no similarity or fair comparison between this case and the Allen -v- Independent Newspapers one.   The Respondent said that in that case Ms. Allen had fully utilised all available internal procedures to resolve her complaints and had made a formal written complaint of bullying and harassment.   They said that further, detailed direct medical evidence, that was cross examined, was given in that case.   They said that plainly neither of these applied in the instant case.  

The Respondent said that based on the foregoing and taking into account all of the facts the complaint/case was not well founded and it should be rejected.

Findings, Decision and Decision:

Section 80 and Section 41 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.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I find some of the Complainant’s evidence and actions difficult to understand and they are contradictory and not in accord with established facts.

The Complainant stated repeatedly that she loved her job with the Respondent, yet on the other hand she also stated she was severely bullied, harassed and abused from the beginning of and throughout the entire period of her employment to such a degree that her health and wellbeing was badly effected and that she was totally miserable at work.   It is difficult to reconcile these two positions.      

The Complainant further stated that in 2012 she was treated aggressively and abusively by the Supervisor in the Weaving Shed and that when she informed the MD about this he did not investigate or do anything about it.   Yet in direct evidence and in in response to questions she accepted and acknowledged that the MD moved her from the Weaving Shed back to her previous job (it is a fact that an employee can only move from one job to another at the consent and direction of management) and she further confirmed that following the MD intervening with the Supervisor, the Supervisor apologised to her.   Contrary to the MD doing nothing as asserted by the Complaint, the reverse is the case; the MD immediately removed her from the area where she had a problem and intervened with the Supervisor, resulting in him apologising to her.

Based on this experience it is reasonable to assume that if the Complainant had in fact problems with other members of management, and had in fact made the MD aware of them, he would have taken appropriate action.

The Complainant’s action or statement in relation to this incident is very revealing.     The Complainant said to the MD that if he would provide her with a reference she would leave the employment - and this when the MD took immediate actions.   It is reasonable to infer from this that the Complainant, at this stage, in 2012, for whatever reason, wished to leave the employment.

The Complainant in her written statement states, at least twice, that the Respondent ignored repeated grievances raised by her in relation to alleged bullying and harassment and she further stated that she attempted to use the Respondent’s Grievance Procedure.     Yet, as her direct evidence shows the direct opposite is the case.   In her direct evidence the Complainant confirmed that she had been and was fully aware of the Grievance Procedure and even more significantly the Bullying and Harassment Policy.   She further confirmed that she never at any stage made a formal complaint of bullying and harassment in accordance with these policies.   I note that this Policy states, as do all the Codes of Practice on the Presentation of Bullying and Harassment at Work, that all formal complaints must be in writing.    It should be noted that an employer cannot commence any investigation or take any action unless and until such a formal detailed written complaint is made to them as an employer must remain neutral in relation to any such matter as there are competing rights in involved, that of the employee not to be bullied and harassed at work and to full and fair procedures where such is alleged; there is also the right of the employee against whom the allegation is made not to have wrongful allegations of bullying and harassment made against them and where such allegations are made to a full and fair procedure in any investigation.

In accordance with numerous determinations of the Employment Appeals Tribunal (EAT) the failure of an employee to fully utilise all available internal procedures to deal with any issues the employee has can be fatal to any claim for constructive dismissal.   I note that this is certainly the case in the instant case where the Complainant confirmed in her direct evidence that she was fully aware of and familiar with the available procedures to deal with her complaints and concerns.   On this basis alone I must find and decide that the Complainant was not constructively dismissed by the Respondent.

The Complainant’s Representative states that the Complainant did in fact make a formal written complaint in her letter of resignation.   A plain reading of that resignation letter clearly demonstrates that this is not the case.   That letter dated 2^nd June 2016, states:

“Dear Sirs,

I am writing to advise that I am terminating my employment with you solely as a result of the bullying and harassment to which I have been subject throughout the entire period of my employment with you and in in particular at the hands of (the Production Manager) and (the MD).

I would be therefore obliged if you would let me have my P45 by return along with payment in respect of all holiday and other entitlements with a breakdown of how same are calculated.

Please let me hear from you as soon as possible.”

Nowhere in this is there any mention of a ‘formal complaint’ or any other form of complaint, nor is there any mention of invoking either the Bullying and Harassment Policy or the Grievance Procedure.    

I further note that it is acknowledged by the Complainant that this letter is the first occasion that she had informed the Respondent in writing of any view she had that she had been the subject of bullying and harassment in the workplace - and I note that the Respondent MD replied to this by letter of 24^th June 2016 (after getting independent professional advice) urging her to reconsider her resignation decision and providing an undertaking to carry out an Independent Investigation into her complaints upon her return once they were put into writing.   But this perfectly reasonable proposal did not even merit the courtesy of a reply from the Complainant.

In her written submission the Complainant states that she “did not respond to this as she felt there was no point in the (MD) investigating himself or (the Production Director) when he approved his behaviour.”   This letter from the Respondent MD, states:

“Dear (the Complainant)

I refer to your letter of the 2^nd June last resigning from your employment.   I am surprised at same given that you had not raised any issue of bullying and/or harassment during your employment with the Company.   In light of this I urge you to reconsider your decision and in this regard if you are mindful to do so I will hold your job open for a period of four weeks from today’s date.   I will also undertake to carry out an independent investigation into your complaints on your return once they are in writing. (my emphasis)

If I do not hear from you within the next four weeks I will assume that you do not want to take up this offer, however I would urge you to please consider same.”

As highlighted above what is being offered is an ‘independent investigation’ and not an investigation by the MD of his and a colleagues alleged behaviour – and I do not accept that this letter is open by any reasonable person to any other interpretation.

Thus even at this late stage the Complainant was refusing an offer of an ‘Independent Investigation’ of any complaints she had.

It is plain that the Complainant did not and was not willing to allow the Respondent any opportunity to deal with any concerns that she had.    Also on the basis of this failure by the Complainant I must find and decide that she was not constructively dismissed by the Respondent.

On the balance of probabilities I find that the Complainant at no stage during her employment made any complaint of bullying and harassment, either verbally or otherwise, other than the one in 2012, about the Supervisor in the Weaving Shed, which was dealt with promptly, fairly and reasonably by the MD, with her being moved from the Weaving Shed in agreement with her and with an apology from the Weaving Shed Supervisor being given to her.  

I find and declare that the Complainant has failed to meet the burden of proof necessary to demonstrate constructive dismissal.

Based on the foregoing I find and declare that the Complainant was not unfairly dismissed by the Respondent, constructively or otherwise.     Accordingly, I declare that the Complaint under the Unfair Dismissals Act is not well founded; it is rejected and is not upheld.

Seán Reilly, Adjudication Officer.    

Dated:   20 March 2017