Complainant

Respondent

Anonymised Parties

A Researcher

An Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00009377-001

30/01/2017

The complainant commenced employment with the respondent in July 2016 as a researcher on a one year fixed term contract. The complainant resigned from this employment approximately six months later. Prior to resignation the complainant was on sick leave from October 2016 through to January 2017 at which point she resigned.

The complainant alleges she was left with no alternative but to resign because of the behaviour of her manager in the respondent company. She is claiming constructive dismissal and wishes her complaint to be heard under the Industrial Relations Act 1969. She did not have 12 months service.

The respondent refuted any and all allegations made in relation to an Unfair Dismissal Act and also points to the complainant’s failure to invoke the internal grievance procedure “Four Step Resolution Process”.

The complainant commenced employment as post-doctoral researcher with the respondent ON 27^TH July 2016. In early August 2016 she was informed by the respondent manager that her work was behind schedule and that she needed results fast and that she should be concerned by the lack of reults.One week later she was spoken to again regarding a lack of results and commented on the components contained within the complainant’s analysis and that her methods were outdated. The complainant has included a technical breakdown of the methods she had used.

In late September the complainant was once again informed by the respondent manager that she should be worried because the project was not proceeding at the expected pace. The complainant alleges that the respondent manager was making disparaging remarks about her work.

The complainant alleges that the respondent manager met her he either glared at her or ignored her when she greeted him. It was claimed that two fellow employees resigned during the complainant’s time with the respondent due to the behaviour of the respondent manager.

The respondent manager informed the complainant that she was not performing and that he intended to issue the complainant with a Verbal Warning. – This intention was not followed up on and no performance improvements were discussed between the complainant and respondent.

When a discussion did take place between the complainant and respondent manager he explained that he was not being aggressive, he was trying to motivate her. The complainant feels that as a mature adult she is not in need of motivation.

The complainant also alleges that the methods suggested to her by the respondent manager for a certain experiment were in breach of health & safety protocols.

The complainant approached the HR Department in an attempt to resolve the situation. Following this she attended her GP and was advised to take some time off work as she was suffering from stress; she was also issued with a medical certification for a period of one month. On 17^th November 2016 the complainant received a letter from the respondent company HR department requesting she attend the respondent’s occupational health adviser, at this medical appointment she was advised to attend mediation and counselling that the respondent would arrange on her return to work. The occupational heath adviser advised her to remain on sick leave until 5^th December 2017.

The complainant then wrote to the respondent’s HR Department thus putting her complaint in writing. A senior member of the HR Department replied saying he would meet with her on her return to work on 5^th December. The complainant however replied saying she would like to meet prior to her return to work. The meeting took place on 29^th November 2017. I tis alleged by the complainant that she was advised during this meeting that if she found it so difficult to work with the respondent manager she should resign from her position. The complainant also alleges that the respondent HR Manager referred her to the official four step grievance procedure allegedly ignoring the fact that she had actually done this.

“Nothing was done to rectify my situation and if I had returned to this environment in which I constantly felt bullied and intimidated it would have impacted my health”

“I have not been able to sleep, have headaches and neck pain. I was left on sick leave with no correspondence, no official written warning and no resolution in sight. I found the situation very stressful and unsatisfactory and felt that I had no option but to resign my position on 13^th January 2017. I did not do this lightly as I incurred considerable expense, in addition to loss of earnings……..”

The complainant resigned from her role with effect from 13^th January 2017 and this resignation was acknowledged by the respondent on the same date.

Prior to her resignation the complainant was on sick leave from October 2016 until the date of her resignation.

The respondent sent the complainant for a medical assessment on 17^th November 2017.

Following receipt of the complainant’s letter of 15^th November 2016 and confirmation from the medical assessment a meeting was arranged for 29^th November 2016. This meeting was attended by the complainant, a friend of the complainant for moral support and two members of the respondents HR Department.

At this meeting the complainant outlined her assertion that felt bullied by her line manager. In response to this allegation the respondent HR Manager outlined that the appropriate way to deal with this complaint was through the respondent’s Respect and Dignity Policy containing the Four Step Resolution process. The fourth step and the most appropriate one in this matter was the fourth step which involves submitting a formal written complaint concerning the individual. Following a response from the individual an investigation can be instigated.

The respondent confirmed it’s position which was conveyed at the meeting in a letter to the complainant dated 9^th December 2016. No further correspondence was exchanged between the parties until the complainant’s resignation letter dated 13^th January2017.

In summary the respondent refutes the assertion in the complainant’s letter of 30^th November 2016 in which she states “that because I felt bullied and unable to work with him my only recourse was to resign from my position”. The only time resignation was discussed was when the complainant enquired about an exit strategy.

By letter on 9^th December 2016 the respondent states to the complainant “to re-confirm you are employed under a fixed term contract which expires in July 2017 and therefore we would expect you to return to work once you are medically fit to do so. I would reiterate that the university’s position is that should you on your own volition decide to resign you will be paid one month’s salary in lieu of notice, in line with the notice provision of your contract”.

The respondent made the point at the meeting of 29^th November to reflect upon the Dignity and Respect Policy and then to outline whether she wanted to invoke the policy and if so at what stage.

Finally the complainant raised a number of Health and Safety issues in her claim form. The respondent raised these issues with the respondent manager and also the Health and Safety Office who in turn determined that all necessary health and safety practices were in place.

Based on the arguments summarised above the respondent refutes any allegations made in relation to an Unfair Dismissal under the Industrial Relations Acts and requests that the complaint claim be dismissed in it’s entirety.

There is little doubt that the relationship between the complainant and the respondent manager was strained from an early point.

In a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition there must have been something wrong with the employer’s conduct.

In a 2006 case before the Employment Appeals Tribunal - John Travers v MBNA [UD720/2006] it stated “ We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case …… In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In Tierney v DER Ireland Ltd UD 866 /1999 “ central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

In the case being considered I feel the complainant has alleged wrongdoing on the part of the respondent manager, this alleged wrongdoing was never the subject of investigation by the respondent due to the complainant’s failure to follow the four step process outlined to her at the meeting on 29^th November 2016 by the respondent’s senior HR person present.

In the medical report following her medical assessment on 17^th November the Occupational Health Adviser quite clearly states “I suggest a mediation process should commence in tandem with her work return to address issues of concern in the working relationship with her colleague. I would suggest supporting her with counselling through your EAP or an alternative model up to 12 sessions. Xxxxx is medically fit to attend meetings to address issues of concern at work”

It is unfortunate that the complainant resigned without ever returning to work. It is unfair to level criticism at the respondent for not having taken this advice on board when the complainant did not return to work on 5^th December and ultimately resigned from her position in January 2017.

Due to the complainant’s failure to utilise the four step internal policy I feel I have no alternative but to recommend that the complaint is not well found and therefore fails.

Constructive dismissal, failure to utilise internal procedures.