Complainant

Respondent

Parties

An IT employee

An IT Company

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-00005791-001

12/07/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 77    of the Employment Equality Act, 1998

CA-00005791-002

12/07/2016

The Complainant was employed by a Dublin based Information   Technology company. His position was as a Customer Services Advisor.

After a year he was promoted to the position of Shift   Lead.

His line manager, the Team Lead, changed.

After time his work performance was criticised by his new   line manager, the Team Lead.

After that occasion the relationship between the Complainant   and his line manager deteriorated

The Complainant went on sick leave due to work stress

After his return to work from sick leave, his line manager   was changed

His work performance was thereafter assessed by a   different line manager

The Complainant then objected to the feedback that he   received from the second line manager

At a meeting he was asked to choose whether he wished to   embark on a Performance Improvement Plan or to accept a demotion back to a   Customer Services Advisor, the role he had done prior to his promotion

After this meeting, he went on sick leave.

On the first day returning from sick leave, he was   dismissed.

His complaint is for unfair dismissal and for   discrimination based on disability (work related stress).

Redress sought

1.   Compensation   for unfair dismissal

The Complainant was paid until 1 June 2016 and got another   job which started on 1 October 2016. His financial losses arising from the   dismissal are a maximum of 4 months on a monthly gross figure of (€2981.48)   which totals €11,300.00. There is also a loss of share entitlement which is   valued at $2000 US (€1,700.00)

The Respondent submits that the loss is limited to 1 month   loss (€2900.00) as the Complainant was unfit for work and did not seek to   mitigate his loss until 1 August 2016 therefore any losses in June and July   2016 are not losses arising from the dismissal, but rather are losses arising   from the Complainant’s illness.

The Complainant responds that the June and July losses, as   they occurred as a result of the work related stress that the authority of   Liz Allen applies and the loss sustained during the period of unfitness are also   compensatable.

1.   Compensation   for discrimination

Unfair   Dismissal Complaint

1. The   Complainant started work on 9 September 2013
2. His   role was as a Customer Services Advisor
3. The   Respondent is an IT company which provides IT advice to customers to design   their own website. It’s market is global and it has hubs in New York,   Portland, Oregon and Dublin, Ireland.
4. The   Complainant was employed in the Dublin office
5. The   Complainant had a very successful start in the company and worked very well   with his line manager, whose title was Team Lead.
6. Due   to his success, he was promoted in October 2014 to Shift Lead.
7. His   role of Shift lead was to provide advice to the Customer Service Advisors
8. This   arrangement worked well until his Team Lead was changed to Witness A, who had   transferred from the New York Office
9. Almost   immediately his experience in the Company changed for the worse
10. Wit.   A called a meeting with him on 20 February 2015. It was a one to one meeting.
11. Wit.   A held the meeting on the fourth floor of the building, which was unoccupied.   The Complainant felt that this was peculiar.
12. During   the meeting, Wit. A criticised the Complainant’s work and used offensive   language. It was not a professional interchange. The Complainant felt bullied   and undermined.
13. After   the meeting the Complainant immediately reported the incident to the HR   manager
14. Wit.   A then apologised and accepted that his conduct had been inappropriate.
15. The   Complainant went on planned holiday leave.
16. On   his return, he made a bullying complaint against Wit. A to HR and requested   to be moved off Wit. A’s team.
17. The   HR manager discouraged the Complainant from making a formal bullying   complaint as she thought his career prospects within the company would be   adversely affected if he did.
18. The Complainant continued to work under Wit   A, but the relationship between them was difficult.
19. Part   of the practice was for shift leads to have one to one meetings with their   Team Leads. Between February and December 2015 Wit. A met the Complainant for   one to one meetings but did not have much feedback to give him.
20. On   17 December 2015, with no warning, Wit A asked the Complainant to attend a   meeting during which he brought several “cases.” This means case files that had   been handled by the Complainant.
21. Wit   A went through the cases files using each one to criticise the work   performance of the Complainant.
22. The   Complainant had no documentation in advance of the meeting and yet, if he had   been allowed to see the case files prior to the meeting, he might have been   able to explain some of the actions that were now being criticised.
23. Furthermore   most of the criticism arose from the fact that there was no job description   of a Shift Lead and therefore the Complainant had not been given any guidance   or training as to how he was to conduct his work duties.
24. The   Complainant was greatly shocked and stressed by the meeting on 17 December   and attended his doctor on 18 December. He was certified as unfit for work   for three weeks due to work related stress.
25. He   returned to work on 11 January. He expected to meet with the HR manager on   his return and he intended insisting that he now move onto a different team   because he could not work with Wit. A.
26. Instead   he was told to attend a meeting with Wit. A and Wit. B (the Customer Care   Manager) who was more senior to Wit. A.
27. Wit.   B queried the Complainants work related stress
28. The   Complainant told Wit. B that he had gone on sick leave the previous month due   to work stress. He told him that his stress was caused by the conduct of Wit.   A who was a bully and who consistently sought to undermine him. He requested   that he be allowed to change onto a different team, with a different Team   Lead.
29. On   29 January 2016, the Complainant was changed onto a different team and came   under a new Team Lead (Wit. C)
30. He   was happy with this arrangement initially because he had worked with Wit C. before and he found her to be reasonable.
31. He   met with Wit. C at one to one meetings, for a number of weeks.
32. Her   feedback was as negative and incorrect as Wit. A’s had been. It was more like   unwarranted criticism than constructive feedback. The Complainant accepts   that at least he was allowed review the case files in advance of the   meetings, but he did not think that the criticisms were warranted. They were   relentless and included nothing positive.
33. The   Complainant expressed his view that the observations that were being made   about his work, under the headings of inaccuracy, productivity and   communication were inaccurate. He denied that there was anything wrong with   his work under any of these headings and again requested that the criticisms   of him be evidenced by the Respondent, because without any evidence, he did   not accept that they were valid. He did not accept that the case files were   in themselves sufficient evidence to base the views that were being   expressed.
34. A   meeting was called by Wit. B and Wit C on 10 March 2015. The Complainant was   asked to attend and the HR manager also attended
35. At   the meeting the Complainant was told that his work performance continued to   be problematic and that he had to choose between two options; either   undertake a PIP (Performance Improvement Plan) or he accept a lesser role, that   of Customer Support Advisor (albeit retain the higher salary that he was on)
36. He   did not decide on which option at that meeting
37. The   following day, having attended his doctor, the Complainant was certified as   unfit for work due to work stress. He was out on leave until May 17^th   2016.
38. The   day before he was due to return her contacted the HR manager to ask what the   format of his back to work meeting would entail. He was told of where to go   when he returned and the meeting would take place.
39. The   Complainant returned to work on 19 May 2016. He attended a meeting with Wit   B, Wit C and the HR manager.
40. He   was informed that he was being dismissed and was handed a letter of dismissal   that had been prepared in advance.
41. He   was not afforded any representation at the meeting.

Discrimination   Complaint

2. The   Complainant suffered from work related stress, as a result of the treatment he received up   to but not including his dismissal.
3. He   suffered a number of stress related symptoms and his G.P. has a record of   this.
4. He   first suffered from work related stress in February 2015, following the   meeting that he had with Wit. A on 20 February. He asked HR at that stage to   change his team but was discouraged from this.
5. Again,   following the meeting with Wit. A on 18 December 2015 he suffered from work   related stress for which he was forced to take leave for 2 weeks. HR knew   about this as the certificate stated work related stress
6. On   his back to work meeting he suffered further stress when, expecting to meet   the HR manager he met the person who had bullied him together with Wit B.
7. Wit   B queried whether his stress was work related at the meeting. This was inappropriate   given that there was medical evidence to support the diagnosis.
8. The   change of his Team Lease did not improve the situation even though he had   hoped that it would. This is because the constant criticism that he   experienced under Wit A team continued along the same vein as before.
9. Furthermore,   he was still on the same floor as he had worked on before, working in the   same environment as Wit. A.
10. He   suffered back ache, which was due to stress, but was not allowed work from   the sofas close to his work station.
11. As   a result of the meeting on 10 March 2016, when the Complainant was offered a   PIP or a demotion, he again suffered work related stress and gave this as the   reason for a 2 month long period of sick leave.
12. After   he was dismissed on 18 May 2016 the Complainant continued to suffer from   stress symptoms.

Disability   discrimination complaint

3. The   Complainant submits that his disability was work related stress
4. He   submits that there was a refusal to allow him reasonable accommodation in   moving him from working with Wit A.
5. He   first requested HR to move him from working with Wit. A after the meeting on   20 February 2015. Therefore, it took one year before this accommodation   request was made.
6. From   February 2015 the HR manger knew that the Complainant was suffering from   stress and should have accommodated him. The stress was caused by Wit A treatment   of him. From this point the failure to move him into a different team was a   failure to provide reasonable accommodation within the meaning of the   Employment Equality Acts 1998-2015.
7. The   refusal to allow him work from a sofa when his back pain was bad was also   failure to provide reasonable accomodation
8. There   is a claim that Wit A, Wit B and Wit C harassed him and victimised him due to   his disability.
9. The   letter of dismissal states that one of the reasons for the dismissal was him   taking sick leave for an excessive period between March and May 2016. This demonstrates   a lack of understanding of the medical condition of stress/anxiety and reflects   the approach that the Respondent took to work related stress.
10. At   the return to work meeting in January 2016, it was apparent that Wit B did   not believe that the Complainant was suffering from work related stress.
11. The   Complainant submits that
12. HR   knew from February 2015 that he wanted to move teams
13. He   was eventually moved into a different team in February 2016 so for a year,   the Complainant was not accommodated and this was unreasonable
14. From   December 2015 the Respondent were in receipt of medical certificates which   stated work related stress, so they knew he had a disability and yet there   was no discussion about how he could be facilitated.
15. On   his return to work in January 2016 he met with his aggressor, Wit A and Wit.   C who cross examined him on his mental health and questioned as to whether it   was work related.
16. After   changing teams in February, he was only allowed 6 weeks before it was decided   that he would be put on a PIP or be demoted. This period of assessment was   too short given that the Respondent was aware of his disability and the less   favourable treatment (PIP or demotion) arose as a result of his disability.
17.   The Respondent have failed to respond to the   allegation of discrimination other than to deny it.

Defence to Unfair   Dismissals Complaint

1. The   unwarranted criticism allegations in relation to Wit A was not unwarranted   criticism but rather was feedback on his performance.
2. The   feedback arose as a result of errors being made by the Complainant
3. The   errors were continuous and were repeated. Some were serious, others were less   so, but they required a response by the company in order to prevent them   happening
4. The   Complainant’s error making was three fold:   giving inaccurate advice to the Customer Services Advisors that he was   supervising, being not a productive as was expected of him and problems in   his communication.
5. One   to one meetings were the normal and standard way for feedback to be given to   any employee and the performance issues were multiple and varied
6. As   the process of feedback meetings went on, the difficulty was not only the   performance of the Complainant but also the attitude of the Complainant which   was to continually deny that there was any problem with his performance.
7. Even   though at each one on one meeting the feedback was evidence based, the   Complainant denied that the evidence was adequate or accurate, or said that   the evidence provided was not evidence for what the Respondent said it was.   He denied that he had done anything wrong. The problem with this being that   he was likely to continue making the same mistakes if he could not take on   board the feedback that was being given
8. In   terms of his alleged disability, the Respondent was not aware of any   disability that the Complainant was suffering from until he first went on   sick leave in December 2015. This was the first time that there was a claim   of work related stress and the Respondent took this matter very seriously.   However up until that point the problem was put down to a personality clash   between the Complainant and Wit A. The Complainant at all times was clear and   robust in his work engagements. He did not appear to be suffering from stress   and therefore the Respondent could not have been aware that he was suffering   from stress until December 2015.
9. The   HR manager may have been requested by the Complainant to shift teams however   this was not made in the context of a disability or a complaint of stress,   rather that he did not wish to work with Wit A.
10. However   as soon as the Respondent was in receipt of a medical certificate stating   work related stress, it acted upon it. Wit B ( a senior manager) attended the   Complainant’s back to work meeting and heard the Complainant in relation to   the difficulties that he had working with Wit. A. Following this meeting   arrangements were made to move the Complainant onto a different team, which   happened on 29 January.
11. There   was no delay in dealing with this request once it was put in the context of   arising from work related stress.
12. After   that the Respondent believed that the Complainant’s request had been met.
13. This   si because the Complainant appeared to be happy that his request had been   acceded to. He raised no other request in January 2016.
14. However,   the Respondent still had to ensure that the Complainant was meeting work performance   that was expected of a Shift lead.
15. Under   Wit C, with whom the Complainant had a very good relationship, a new way of   dealing with the Complainant’s was arranged. This involved a “terms of   engagement” meeting whereby how the one to one meetings would be conducted,   was mutually agreed.
16. Wit   C was intent on demonstrating respect for the Complainant while at the same   time, improving his work performance, because the job still needed to be done   and the Complainant was keen to do the job.
17. The   difficulty was that as so as Wit C gave any feedback that was critical of his   performance, the Complainant went on the defensive and denied any wrong doing   and said the problem was that he had no job description.
18. After   6 weeks of meetings where the Complainant did not appear to be able to accept   any feedback and because he blamed all the problems on not being trained as a   shift lead, even though the problems in his performance would have been   problematic, had he been doing them as a Customer Services Advisor.
19. Therefore   to allow him the training that he felt that he needed it was decided that he   would go on a PIP or revert to acting as a Customer Services Advisor, albeit   retaining the higher salary of a Shift Lead.
20. This   was the most reasonable option that the Respondent could come up with,   because he could not remain in the supervisor role that he was in, making so   many repeated mistakes and directing the Customer Services Advisors wrongly.
21. It   was only after the meeting on 10 March 2016 when the Complainant refused to   accept that he had any performance issues and queried the basis for any   criticism of his work that the decision was made to dismiss the Complainant.
22. The   fact that he went on sick leave was not a material factor in him being   dismissed.
23. In   the event that a finding of unfair dismissal is made, a partial defence of   contributory conduct is raised.

Defence   to Discrimination Complaint

4. The   Respondent was not on notice of the Complainant’s work stress until December   2015 when he went on sick leave
5. After   that point the Respondent met with the Complainant’s request to change teams,   which occurred on 29 January.
6. He   was fit for work during the period January until March 2016
7. No   complaints were received about his working relationship with Wit. C during   this time and no complaint were made to HR during this time
8. The   Respondent, having accommodated the request of the Complainant to change   teams in order to work with a Team Lead with whom he had a good working   history, could not have been aware that he was suffering from work stress   from February 2016 onwards
9. HE   did not report any stress or anxiety to Wit. C during the 6 weeks that he   worked with her.
10. He   did not report any stress or anxiety to any other manager during this period.
11. As   far as the Respondent was concerned, they had met his request to change   teams.
12. The   issue of work stress only became apparent in the period Jan to March 2016 was   when following the meeting on 10 March the Complainant again went on sick   leave. However, by the time he went on sick leave it had already been decided   that he would be dismissed because he was impossible to direct.
13. He   was making fundamental errors in his work, he was in a senior role   supervising other people’s work, he was consequently leading a team of people   into the poor practices that he himself had, he refused to accept that he had   any work performance issues and questioned anyone who was senior to him, who   questioned him. It was a circular problem and the employment could not   continue.
14. It   is not denied that work stress can constitute a disability however in these   circumstances the Respondent did not know that he was suffering from this   disability, having been certified as fit for work.
15. Clearly   once he went on sick leave in March, they were aware that his stress   condition had returned but up until then, they did not know.
16. From   March onwards the only act taken by the Respondent in relation to the   Complainant was that he was dismissed. Therefore unless there is a complaint   of discriminatory dismissal, which there is not, then there is no other   evidence of discrimination as the Respondent was of the view that it had met   the needs of the Complainant until he went out on sick leave in March 2016.
17. It   is denied that the Complainant reported to Wit C that he was suffering from   work related stress over the 6 weeks that she held one to one meetings with   him.
18. Therefore,   in response to the claim that he received less favourable treatment on the   basis of his (work related stress) disability, it is denied that the company   knew about this disability and they deny the charge that they did not   reasonably accommodate him.

Unfair Dismissal   Complaint

I find this complaint to be well founded.

Having met with the Complainant on 10 March 2016 at which   the Complainant was offered 2 options; to go on a PIP or be demoted, there   was an onus on the Respondent to allow him exercise these options, which they   failed to do so.

The basis of the decision to dismiss the Complainant was   that he refused to take instructions and this was demonstrated at the meeting   on 10 March 2016.

However, this is not an act of gross misconduct. This charge   of refusing to take instruction was never actually put to the Complainant in   the context that, if he continued to refuse to take instruction that he might   be dismissed. No fair procedures were followed.

He should have been invited to the meeting, he should have   been told in advance of the charge against him, he should have been allowed representation.   None of the basics of fair procedures were present in this dismissal and   therefore the dismissal is unfair because he was not given the chance to   choose one of the 2 options that had been offered to him.

I find that the Complainant contributed to his dismissal   by a poor attitude to feedback. I do not accept that all the feedback given   to him was unwarranted. Some of the criticism was valid some was not but the   validity of the criticism was consistently rejected by the Complainant, even   at the hearing.

There is an implied obligation on an employee to accept   instructions from an employer and yet the evidence during the hearing was   that whatever the Complainant believed to be the case, was the case. He would   not accept that someone, more senior to the Complainant may have an alternative   view on his performance and that if the person is senior to him, it is their   opinion that takes precedence over his. That is the basis of a hierarchy in   management and without it a business cannot function. This was evidenced during the Complainant’s   evidence when he was dealing with feedback that he received. Even though he   said that he was open to receiving instruction and feedback, there was more   evidence to support the Respondent’s version of events, namely that he   queried and questioned each criticism that he received instead of accepting   the feedback and learning from the feedback and perform differently next   time.

I am satisfied that the feedback given to the Complainant   most of which was critical of his performance was a real reflection of how   his work performance was considered by the Respondent. I do not accept that   the criticism was concocted or was a strategic witch hunt against him.

The Complainant started off on a defensive footing, and   this might well have been because of the overly negative criticism that he   received in February 2014 from Wit A, which was inappropriate. However, from February 2016 onwards I am satisfied   that there was an opportunity for the Complainant to keep his position as   shift lead, had he listened to and acted upon the feedback that he received   from Wit. C.

This does not mean that the dismissal was not unfair,   because for reasons already explained the Respondent erred at the end of the   Complainant’s employment. However his poor response to criticism/direction,   which is a normal and necessary feature of any job, did contribute to the   dismissal occurring and in that respect I reduce the award by 10%.

I find that the loss arising from the dismissal to be €8700.   That is the loss from 1 July until 1 October 2016. I do so on the basis that   I find that he was on the balance of probabilities fit for work from then. He   looked for alternative work in early August but I accept that it was likely   that he would have been fit from early July. Reducing this award by 10% I   award the Complainant €7830.

I add to this a share value that the Complainant would   have if his employment had continued. As the value of this is €1700.

Therefore, the award is respect of unfair dismissal is €9530.00

Discrimination   Complaint

I find that the Respondent while being aware that there   were difficulties between the Complainant and Wit A, that it only became   aware that the Complainant’s unhappiness at working with Wit A had escalated   into a stress/ anxiety condition, which necessitated a period of sick leave, in December 2015.

I find that following the period of sick leave that the   Respondents took account of the Complainant’s condition and acceded to his   request to be removed from Wit A’s team. I do not find the incidentals which   surrounded this decision (such as the return to work meeting being conducted   by Wit A and Wit B, keeping him on the same floor as Wit A – when this was   not complained of or refusing to allow   him use the sofa - which I don’t to be   credible) to be discriminatory.

After the team lead was changed I accept the evidence of   Wit B, that for 6 weeks she attempted to engage with the Complainant in a   positive way but that he refused to accept that he had problems with his work   performance. I do not accept that engagement between Wit C and the   Complainant constituted discriminatory conduct. The actions of Wit B arose   from errors that the Complainant was making, not because he was stressed. In fact   there was no evidence to support the Complainant’s assertion that during the   period that he worked with Wit B that that he was suffering from stress.

A letter from the Offices of a US attorney representing the Respondent stated that part of the reasons for the dismissal were due to him taking sick leave, which was described as “an abuse of the company sick leave scheme.” This would have constituted evidence in support of a case of discriminatory dismissal however in this case, the discrimination complaint is from the treatment he received other than the dismissal, so in that respect the letter’s admission is not relevant. As he has brought an unfair dismissal case and cannot bring both this and a discriminatory dismissal, the complaint of discriminatory dismissal is not before me.  

All I can consider is whether the treatment, other than   the dismissal, constitutes discrimination.

In respect of treatment, other than the dismissal I did not   find that the prima facie case of discrimination had been discharged by the   Complainant. I do not accept that he was harassed as a result of his stress   condition. He has not shown that the   way that he was treated arose from the Complainant’s stress/anxiety condition   and therefore the complaint of discrimination fails.

The claim for victimisation is not well founded in that   the Complainant was not victimised for bringing a complaint of   discrimination.