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-00010093-001

07/03/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00010093-002

07/03/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00010093-003

07/03/2017

The Complainant’s representative opened detailed   submissions and the Complainant herself also gave evidence.

The Complainant has been with the Respondent Employer (or   it’s predecessor) since 1999. The Complainant was subject to a Transfer of   Undertaking in 2011 when the Respondent Employer took over the company that the   Complainant had then been working for. The Complainant gave evidence that she   was not happy with a number of things that occurred since that Transfer. The   Complainant detailed a demotion she believes she was subjected to in 2013.   The Complainant also described coming across an email exchange between persons   senior to herself wherein she is described in a most disparaging way and   there is a suggestion therein that she should be gotten rid of.

The Complainant confirmed that this did not happen and   nothing ever came of these emails. However, the Complainant said that it gave   rise to her felling very uncomfortable and unhappy in the workplace with a   sense that her position was under threat. The Complainant did not raise any   grievance or issue at the time.

The Complainant also gave evidence that despite two role   changes (in 2013 and 2015) she never got an updated Contract of Employment   with the Respondent company as required under the Terms of Employment   (Information) Act 1994.

In May of 2016, the Complainant was on the cusp of going   out on a previously agreed period of parental leave. She had a conversation   with her line Manager wherein she broached the questions of a salary raise   and the fact that certain of her colleagues appeared to be getting benefits   that had not been extended to her (Toll tags). The Line Manager acknowledged   that there was a conversation to be had, but suggested that the Complainant   should wait until her return from Parental leave. The Line Manager did not   hold out much hope for a salary raise. The Line Manager did confirm that he   knew that there was an intention within the Respondent company to   re-structure some of the areas. He did not believe this would overly affect   the Complainant though her role might become more developmental.

At the end of August 2016 and within a few days of her nominated   return to the workplace, the Complainant   received an email entitled “New Joiners and Role Changes”. The email   detailed the fact that there were new people joining the various retail teams   and that there would be some changes in the roles of various of the existing   commercial teams. Of concern to the Complainant was the pronouncement   contained in the email that she would be joining:

“…..the snacking category as a Junior Business Manager..”   supporting a Mr. DP on two retail accounts

The Complainant, who had not been consulted in advance of   this company-wide pronouncement, gave evidence that she was very upset at   what she perceived to be her demotion from Customer Business Manager (her previous title) to Junior   Business Manager . It was the Complainant’s understanding that   this role was subordinate to the individual PD and that the account was much   smaller than the one she had heretofore managed on her own.

The Complainant was so effected by what had happened that   she consulted with her GP who certified her as being unfit for work for two   weeks as a result of work related stress. This certificate was sent to the   Respondent Employer and the Complainant did not return to the workplace as   expected.

On the 8^th of September the Complainant   instructed Mr PMG to write to her Employer setting out her disappointment.

The letter so written was opened in the course of evidence   and contained a number of historical Grievances (as described by the   Complainant) together with setting out the more immediate concerns she had regarding the   perceived demotion and diminution of her position notified to her on Parental leave and   against a backdrop of an excellent work record. The Complainant’s   representative indicated a willingness to meet with the Respondent to discuss   those matters so set out.

The Complainant opened up the correspondence that passed   between the parties thereafter. A Ms. QM communicated on behalf of the   Respondent company and outlined the company’s responses. The employer   acknowledged the seriousness of the issues raised and expressed concern that   the Complainant had been caused work related stress. The Company indicated it   wanted to address issues raised and facilitate a return to work. The   Respondent company was anxious to have the Complainant reviewed by it’s own   occupational health specialist and also referred the Complainant to a   confidential Employee Assistance programme. The communications went directly   from Employer to Employee, bypassing the Complainant’s HR Consultant.

The Complainant’s HR Consultant wrote again to MsQM   stating that the notice given to attend a medical appointment was inadequate   and the Complainant was happy to attend a session with the Occupational   Health person if adequate Notice is given. The letter goes on to state:

“This is not consistent with the sudden   concern for our client that express in both your letter and your email. It is   more consistent with the treatment she received in her employment. We can   only assume that your letter was designed to add stress to our client.”

In response to this communication MsQM wrote to the   Complainant’s representative (on September 22^nd 2016) confirming   that the Company has a comprehensive and best practise grievance handling   process and practise and that priority would be given to the Complainant. The   same letter indicates that the Complainant’s grievances were only detailed to   the Respondent as of the 9^th of September 2016. In this letter the   Respondent also stipulates that the Company policy is to allow the   Complainant representation in the form of a colleague of her choice or an   appropriate Union Rep. The Respondent insisted it would continue to   communicate with the Complainant directly.

The Complainant’s representative stated (n a letter of the   26^th of September) that the Respondent was not operating to best   practise if it was not allowing him represent their employee.

On October 7^th the Complainant’s Representative   wrote again pointing out the serious effect this resistance on the part of the   Employer was having on the Complainant.

The Complainant in the meantime did attend for a medical   review at the behest of the Respondent. The outcome of this examination was a   confirmation that the Complainant was unfit to return to work for up to six   weeks and that she had an anxiety disorder that the Complainant attributed to   the job demotion recently received. After some scheduling difficulties the   Complainant was reassessed in January 2017 and continued to be out sick. The   Complainant was paid while out on sick leave.

The Complainant’s representative was requesting that any   and all communication should be directed through it’s office but the Respondent   was resisting this request preferring to communicate directly with the   Complainant. The Complainant’s HR representative was under the impression   that the Respondent was going to initiate a separate and independent   investigation into all matters raised. This does not appear to be confirmed   in any of the correspondence from the Respondent which simply repeated the   stated policy of wanting to engage with the Complainant in the company of a   chosen colleague or a member of Union per letter of the 21^st of   December directed to the HR Consultant written at the same time as a   comprehensive letter went directly to the Complainant stating the Company’s   position in terms of the implementation of it’s grievance policy and   procedure. The letter of December 21^st from QM states that the process needs to   start with a meeting (off site if necessary and attended by the Complainant   with a duly recognised representation) so as to fully understand the issues   and this letter promotes the idea that a return to work is the motivation.   Again the issues of the confidential line and   counselling service are all detailed.

In the aftermath of the January medical examination, the   Complainant was deemed fit enough to engage with the Respondent for the   purpose of trying to resolve issues, though was not deemed fit to return to   work. There followed a series of emails between the Complainant and the   Respondent HR representative QM wherein the Complainant maintained her wish   to have her nominated representative attend with her she stated in an email   of January 19^th that she “…cannot   understand what fear the company have of a representative and how that is   going to make any difference to the substance of the case” . By way   of response the company indicates in a February 2017 email to the Complainant   that it remains bound by it’s own policy which is in line with LRC best   practise. The Complainant is directed to the Employee handbook in this regard   though the relevant extract of same was already outlined in the previous   letter of the 21^st of December.

Another series of communication from the Respondent   directly to the Complainant and the Complainant’s HR Consultant back to the   Respondent ensues. No progress is made and eventually on the 3^rd   of March 2017 the Complainant (through her HR Consultant) resigns her   position.

The Complainant herself describes how she has “..tried to follow company procedures   to get the matter resolved but my efforts   to do so have been frustrated at every turn” in her own letter   of March 3^rd.

The Complainant’s employment was terminated in April 2017.   The Complainant in her evidence and on cross examination described having   real trust issues with the Respondent company and in particular arising out   of the 2013 emails she came across wherein her own performance was questioned.   The Complainant accepted that she was paying subs to a Union though she had   no idea who might represent her within that body. The Complainant was deeply   frustrated by what had happened and genuinely could not understand why the   Respondent had resisted her request that she be allowed to bring her own   trusted and external representative. The Complainant confirmed that she had   applied for a promotion in 2014/2015 and was successful.

The Complainant gave additional evidence concerning the   lack of Contract of Employment being provided despite up to two changes in   the nature of her employment.

The Respondent opened it’s own submissions and a small   amount of evidence was heard from QM confirming matters raised.

The Respondent confirmed that it had circulated an email   at the end of August 2016 and within a few days prior to the Complainant’s   return to the workplace post parental leave. The email entitled, “New   Joiners and Role Changes”. The email detailed the fact that there   were new people joining the various retail teams and that there would some   changes in the roles of various of the existing commercial teams. It was   accepted that the Complainant was   effected and would be joining:

“…..the snacking category as a Junior Business Manager..”   supporting a Mr. DP on two retail accounts

The Respondent explained that the reference to “junior”   was for internal purposes only. The Complainant was the junior of the two   business managers in charge of this account ad that the Complainant would be   under the management of a Mr. SF and in charge of an account worth up to 11m.   Exernally, it was explained to me tha,t she would still be considered a   Customer Manager.

It was confirmed that the Complainant could not have known   this detail form the initial email but would have had all this explained to   her had she engaged with the workplace on her expected return to work date or   as soon thereafter as might have been practicable and in the context of any   workplace grievance she was intending to initiate. The Respondent was, in   effect, saying that the Complainant had misunderstood what had been   communicated to her on the 31^st of August and that it would have   been clarified had she asked directly what this meant.

Instead of clarifying the immediate position, the   Respondent says that it was instead faced with a letter from a third party   declaring stress and anxiety on the part of the Complainant, pointing out   historic (and heretofore undocumented Grievances) as well as expressing   disappointment at a perceived demotion.

The HR Department took over communicating with the   Complainant which would have to be considered best practise where so many and   such serious allegations were being made.  

The Respondent Employer opted not to engage (other than in   a very minimal way) with the HR Consultant that the Complainant had engaged.   The reason for this decision was not made known to me. I was simply invited   to consider the extent and nature of the Policies and Procedures which   operated in the workplace. The Respondent was confident that the right to   representation as provided for was sufficient at the preliminary stages of   any Grievance procedure that the Complainant might have wished to engage in.   To this end, it was repeatedly pointed out to me that the Complainant was   told again and again that the HR Manager was happy to meet with her for a preliminary meeting away from the   workplace if required and that she could bring a colleague from the workplace   or bring a Union representative. Other options for assistance in the   workplace were also referenced for the Complainant’s assistance.

The Complainant and her HR Consultant objected to the   refusal to allow the latter be at the Complainant’s side at any meetings   concerning her future in the workplace. The Employer remained implacable   refusing absolutely to engage with the   HR Consultant.

I have carefully considered the evidence adduced in the   course of this hearing. The Complainant is under an onerous burden of proof,   having to establish that arising out of the conduct of her Employer, it was   reasonable for her to terminate her Contract of Employment.

In fact, I find that what I am really being asked to   consider is whether or not the Respondent Employer’s refusal to engage with   the HR Consultant (at the Complainant’s request) amounted to conduct so   unreasonable as to leave the Complaint with no choice other than to resign   her position.

I have been invited by the Complainant’s representative to   have consideration for recent case law wherein legal representation was seen   by the High Court as necessary but would have to distinguish that type of case on the grounds that it involved a   Disciplinary process wherein the Complainant’s job was at stake. The facts   herein disclose, at best, a Grievance process which might ultimately have   collapsed had the Complainant given her Employer a chance to explain the   perceived demotion.

I have to give consideration to the Respondent’s actions   over the period of time in the run up to the Complainant’s decision to   resign. On balance I find that the Respondent has not conducted itself   unreasonably. The Respondent has disclosed extensive and effective policies   and procedures that operated in this substantial workplace. These simply   needed to be triggered by the Complainant. The Respondent additionally   pointed to a confidential employee communication line and counselling   services which it’s employees could avail of. The HR Manager‘s correspondence   was conciliatory in tone and suggested that a preliminary informal meeting   might be conducted away from the workplace to start the ball rolling.

It was never suggested that the Complainant would have to   do anything on her own and she was repeatedly advised that she could be   accompanied (by a colleague) or represented (by a Union official) in any   meeting held between her and her Employer. The Complainant opted not to avail   of this opportunity. In her evidence, the Complainant sought to establish a   mistrust of everyone in the workplace together with an ignorance of who her   Union rep might be as justification for not engaging in this preliminary way.   The Complainant simply could not understand why her chosen representative was   not being given an audience.

The Respondent maintained that there was no obvious or   good reason for deviating, at that time, from it’s own well embedded and   recognised processes. In particular the Respondent felt that these processes   allowed for perfectly adequate accompanying arrangements for any Employee   wishing to trigger a Grievance process or simply have issues aired.

I have some sympathy for the Complainant as there can be   no doubt that she (whilst out on Parental leave) genuinely believed she was   being demoted. However, I find her refusal to engage with her Employer in any   meaningful way to have been ill-advised. There was a point blank refusal to   meet her Employer – with whom she did still have a Contractual relationship –   half way. The Complainant conceded that she knew that the workplace was   Unionised and that the option to talk to a Union representative was open to   her.

I found no merit in the somewhat complicated allegations   concerning “.. others have left your   employment over similar issues consequently for an employee to be seen to be   challenging the company would see them on the same path as those that have   gone before in the circumstances it would be foolish for any employee to   raise their head in this regard..”

If the Complainant had had negative experiences in the   past (and I do not doubt that she did -especially in 2013), her Employer was   not on Notice of them earlier than this time. On the face of it, the   Respondent appeared to be of the view that the Complainant had been a good   and happy Employee, until they were informed that she was not.

The Complainant for the reasons outlined has failed to   make her case and her claim must fail.

Regarding the failure of the Employer to provide the   Complainant with a Statement of the Terms of Employment I find the   Complainant has made out her case in this regard.

The Complainant does not succeed under the Unfair   Dismissals legislation.

I award the Complainant €300.00 under the first claim   under the Terms of Employment (Information) Act, 1994

I award the Complainant €300.00 under the second claim   under the Terms of Employment (Information) Act, 1994