ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00003546
Complaint for Resolution:
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-00005069-001 | 08/06/2016 |
Date of Adjudication Hearing: 03/03/2017
Workplace Relations Commission Adjudication Officer: Pat Brady
Location of Hearing: Ashdown Park Hotel
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant had been employed by a local community development organisation since October 1st 2012 and was employed on a part-time basis working 17.5 hours per week.She was part of a small team of four employees and additional volunteers. |
Summary of Complainant’s Case:
The complainant says that she had been the victim of bullying in 2013 but this was not the subject of a formal complaint to the respondent but resulted in her absence from work on stress related illness. She said that she was not well enough in this period to make a grievance. She returned to work but was then subjected to questions about her performance. She had her duties curtailed and there was a formal disciplinary process in June 2014 which resulted in the application of an oral warning. A follow up meeting had been due but the complainant went out on sick leave on July 24th and did not return to work. In September 2014 the complainant’s solicitor wrote to the respondent on a number of occasions and referred in general terms to a complaint of bullying and harassment, but sought an independent third party to process the matter which was not provided for in the grievance procedure. This was not acted on and in due course the complainant felt that she had no option but to resign. Among the conduct she complains about are the following; withholding information from her, severe or unfair criticism, humiliation by being shouted at, being micro-managed, physical abuse or the threats of physical abuse, and the spread of malicious rumours about her. |
Summary of Respondent’s Case:
The respondent denies any knowledge of alleged bullying of the complainant and no formal complaint of such behaviour was ever brought to its attention. She underwent various performance management steps (‘supervision’) carried out by the manager in late 2012 and early 2013, had a six month appraisal in April 2013 and following her first year appraisal in October 2013 was offered a ‘permanent’ post. However, in early 2014 performance issues were identified in respect of her work. In January 2014 it was identified that the complainant was not carrying out her outreach work satisfactorily, information and client records were not being updated or were inadequate, certain instructions were being ignored etc. In the period to June only two hours outreach work was carried out. While she appeared to acknowledge these deficits in the course of ‘supervision’ it did not lead to any improvement. Accordingly on June 10th 2014 disciplinary proceedings were initiated following which an oral warning was administered on June 18th and areas requiring improvement identified. She was also on notice that in the absence of improvements the second stage of the disciplinary proceedings would be triggered and a review meeting was arranged for July 16th 2014. That meeting took place and the respondent concluded that the required progress had not been achieved and issued a minute of the meeting to the complainant on July 23rd. The following day the complainant went on sick leave. There followed some difficulties about sick pay and medical certificates. However, on September 3rd, the respondent received a letter from the complainant’s solicitor ‘invoking the grievance procedure in relation to alleged bullying and harassment. While there is some other detail about various medical appointments she remained on sick leave until her resignation on June 7th 2016. |
Findings and Conclusions:
In my approach to the hearing I identified three ‘modules’ or episodes in the case and I propose to analyse it here on the same basis. There is the period from the commencement of the complainant’s employment up until January 2014, the period between then and the commencement of her sick leave in July 2014, and finally the period between then and her resignation in July 2016. The factors required to ground a case of constructive dismissal are well established. The bar is set high in such cases as it is in all dismissal cases. Neither party is permitted to lightly break the contract of employment unless they can provide substantial justification for doing so. In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this is taken to mean something that is so intolerable as to justify the complainant’s resignation and/or something that represents a repudiation of the contract of employment. 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.’ Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61 Turning to the first ‘module’ referred to above bear in mind that this relates to events well over six months before she went sick and almost a year before the correspondence received from her solicitor in September 2014. It was at least two and a half years before her eventual resignation. It is very damaging to the complainant’s case in general that events referred to in her complaint form and alleged to have happened in this period were not the subject of a contemporaneous complaint. There is no merit in the argument that a complaint could not have been made because her manager was involved. An alternative process could easily have been put in place and was provided for in the Grievance Procedure. Accordingly, I discount the period up to January 2014 as having any bearing on the eventual outcome or of creating any liability on the respondent for the eventual resignation. This brings the narrative to the January to July 2014 period. The respondent set out in great detail its management of the complainant’s performance in this period, and a flavour of that is given above. In my view, while such a process is unlikely to be a comfortable one for the employee in question, the evidence as to how it was conducted indicates that it was procedurally fair and thorough, and based on substantial concerns about the complainant’s performance. I can see nothing to support the contention at the hearing that the disciplinary proceedings were not conducted properly or that they were oppressive. And unfortunately for the complainant her timing gives rises to a suspicion that it was the imminent prospect of an escalation of the disciplinary action against her which precipitated her sick leave. The letter regarding the disciplinary meeting was issued on July 23rd convening it for the 25th. She went on sick leave on the 24th. It is stretching credulity not to see a very direct link between these events. There was no evidence of any reference to, or complaint of bullying in the course of this ‘module’ either. Again this must be seen as very damaging to the complainant’s case In fact none of the examples of alleged bullying given by the complainant and listed above related to the actual conduct of the disciplinary process. She stated on the complaint form that her sickness was a result of the treatment she received in this period. That is a different matter. This may have been very stressful for the complainant and appears to have been. But whether the reasonable and innocent actions of the respondent in the exercise of its authority can be rendered into a breach of dignity at work principles is another matter entirely. The Court of Appeal has made clear that disciplinary proceedings are not per se a ‘safe haven’ for the purposes of making an assessment of whether they were conducted in such a way as might otherwise fall foul of the criteria used to assess conduct for that purpose. ‘As to the nature of conduct that may amount to bullying I agree with the views expressed by Finlay Geoghegan J. in her judgement that just because repeated inappropriate behaviour which undermines the the dignity of a person occurs in the course of a disciplinary process, such conduct is not, as a matter of principle protected from a potential finding that it amounted to bullying. Behaviour that can objectively be viewed as bullying enjoys no safe haven merely by reason of the fact that it may have taken place in the context of a disciplinary process. Ruffley v Board of Management of St Anne’s School [2015] IECA287 at paragraph 40 Per Irvine J In other words if the behaviour can be said to fall within the definition below, even if part of a disciplinary process it might still constitute bullying. That definition appears at paragraph 3.4.2 of its Handbook and is the commonly accepted definition taken from the Code of Practice and adopted in a number of decisions of the Superior Courts including Ruffley (above). “Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but as a once off incident is not considered to be bullying”. Other policies often contain examples of what is not bullying, although the respondent’s does not. It is helpful to look at them.
‘Bullying is distinct from conflicting views and interpersonal difficulties in the workplace, which should be raised with the appropriate manager in order to have any grievances resolved.
There was no evidence that the conduct of the disciplinary process breached these principles or was in any way oppressive. Turning finally to the third ‘module’, the complainant went on sick leave on July 24th and while there was some interaction in relation to her sick leave the next event of relevance to the complaint was a letter from her solicitor on September 2nd alleging that the complainant had ‘been subjected to treatment at work which she believes amounts to bullying and harassment’ and also saying that due to the nature of the allegations they could not be processed within the existing provisions of the respondent’s policy.
The respondent solicitor replied on September 8th seeking details of the allegations and saying that there was no reason why they could not be pursued internally.
The complainant solicitor wrote again on September 15th re-stating the reasons why the grievance procedure was inadequate and named her supervisor and the Chair of the Board of Management as respondents, but did not provide any details of the complaint.
She said that full details of the grievance would be set out when a procedure for processing it was agreed. The respondent replied on September 25th stating that there was an obligation on the complainant to particularise her complaint and offering to process the complaint to a member of the Board of Management.
There was no response until December 10th but again this failed to provide details and stated that members of the Board of Management could not be involved in a complaint about their own chairman. Surprisingly, this aspect of the matter seemed to rest there.
Did anything else happen in the period up to the resignation of the complainant in June 2016 that could bring the facts within the Berber test above?
Evidence was given of various interactions between the parties. On one occasion, May 2015 the complainant said she would only attend a ‘Welfare meeting’ if her solicitor was present. The meeting did not go ahead. A meeting scheduled for October likewise did not go ahead.
In June the complainant attended the complainant doctor, on her own initiative and told him she was embarking on litigation against the respondent. (The doctor had to share this information as part of his reasons for withdrawing as the respondent’s medical practitioner).
On the complaint form she asserts that ‘no real effort had been made to engage with her by her employer since July 2014. This is demonstrably untrue. Conversely, she had failed to particularise her complaint, which even allowing for some uncertainty about how it was to be processed is a critical requirement for it to be taken any further. I see no evidence of the matter being raised again between December 2014 and June 2016 save for a telephone call in June 2015 from the ‘company doctor’ advising that the complainant had told him she had engaged counsel and was initiating proceedings against the respondent on grounds of bullying and harassment. (He did this to explain that he could no longer act to provide medical assessments for reasons not relevant to the case.) There was some engagement but only in relation to the monitoring of her sick leave through the medium of ‘welfare meetings’ The complainant resigned on June 7th 2016 and submitted her complaint to the WRC the following day. I can see nothing in this third period to justify the complainant’s decision to terminate her employment; there was no ‘last straw’ situation. Returning to the ‘Berber’ test to the effect 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.’ I find no such conduct on the part of the respondent. In module one, as I defined it above, the respondent had not been made aware of a complaint so was hardly in a position to do anything. In module two it was acting in the normal pursuit of performance management, and doing so unexceptionably, and in module three the complainant’s failure at any time to provide detail as to her complaint meant that nothing further could be done. This is fatal to the complainant’s case, especially taken with the fact that between December 2014 and the date of her resignation she did not raise the matter with anyone again, except a medical practitioner who had no role in the matter. The late Dr. Mary Redmond has noted, in Dismissal Law in Ireland, at page 34; ‘There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employers grievance procedures in an effort to resolve his grievance, The duty is an imperative in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints. This was referred to in Kirwan v Primark (UD 270/2003) where the EAT held noted that the claimant said that she was only going through the motions and therefore there was not a genuine attempt to utilise the grievance procedures.’ As noted this applies with some force in the current case. The complainant’s brief, but unconvincing flurry of activity in September, and then in December 2014, and the failure to provide detail on the complaints and against whom they were being made comes nowhere near the level of utilisation of procedures required. This is specifically a requirement of the respondent’s procedures. The respondent handbook requires the following in relation to a complaint under its Dignity at Work policy. (Handbook 3.4.6). The individual shall make the initial complaint in writing to the Chairperson/Staff Liaison Group and or a member of the Board of Management In the interests of natural justice the alleged harasser/bully will be notified in writing of the nature of the complaint and will be advised that they will be afforded a fair opportunity to respond to the allegation(s). The complainant failed to comply with this. Some reasons were advanced for not doing so, but only in September 2014 and I find that they were not well-founded. Conversely, the respondent could not have done much more in the circumstances, notably of not having a particularised complaint. I referred to the extensive and long-standing jurisprudence on this point earlier; in addition to Conway v Ulster Bank Limited UD471/1981, referred to above, other examples are Zabiello v Ashgrove Facility Management Ltd UD1106/2008, Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268. All stress the obvious necessity to use and exhaust internal processes before taking the ultimate step of resignation, or at least resignation with a view to making a case of constructive dismissal. The reasons for this are obvious, and referred to by Dr Redmond above. Breach of a contract of employment is a serious matter for either of the parties to it. There are onerous demands placed on an employer seeking to do it, and in the ‘mirror image’ equally onerous obligations placed on an employee seeking to claim constructive dismissal. I can find nothing here that puts the conduct of the respondent into the territory required by the Berber test. It is a difficult situation when an employee is on long term sick leave, especially where it is stress related and in this regard the respondent seemed to keep a respectful distance. Except where an employer may trigger proceedings to terminate on the grounds of incapacity the greater onus is on an employee to keep her employer up to date on progress towards a return to work.
Its attempts to engage the complainant were spurned by her on two occasions. (There is no right to have a solicitor present at any internal workplace meeting, and certainly not one related to welfare or fitness to return to work where no employment rights are at stake).
As far as I can see the complainant did not engage with the respondent between June 2015 and the date of her resignation a year later, and ignored correspondence from the respondent in October 2015.
The complainant raised the issue of bullying and harassment for the first time in September 2014 in respect of a period a year earlier and/or the disciplinary process. Her failure to do so in respect of the earlier events is absolutely fatal to her prospects of a successful complaint in that specific regard. She adduced no evidence of unacceptable behaviour in relation to the disciplinary process itself and I could find none.
She went sick fearing a (possible) imminent escalation of the disciplinary action against her and two months later, and for a further three months after that could not bring herself to specify what the complaints were.
The particularisation of the complaints and the identification of an acceptable means of processing them are entirely severable. Indeed it may be necessary to see the complaints to determine the most acceptable means of processing them.
All in all this is a complaint of constructive unfair dismissal that fails to meet the criteria of either unreasonable behaviour on the part of the employer or breach of contract and it has no merits.
The complainant has sought to retaliate against the exercise of a legitimate disciplinary process with a smokescreen of alleged complaints which she failed to properly bring to the respondent’s attention in the first place, or having done so very belatedly to state simply what they were.
For these reasons her case fails.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the reasons outlined above I do not uphold complaint CA-00005969-001 and it is dismissed. |
Dated: 09/05/2017
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Constructive dismissal, long term sickness. |