Complainant

Respondent

Parties

Senior accounts receivable process specialist

Medical devices production 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-00006430-001

11/08/2016

The Complainant started working with the Respondent on the 15^th of October 2012 as an accounts receivable administrator for the Dutch speaking market in Benelux.

The Complainant resigned after a period of sick leave and cited constructive dismissal as the reason for same.

The Respondent denied that the Complainant had no choice but to treat her employment as at an end. Their position was that this was simply a case of an employee who had chosen to resign.

The Complainant sought recognition for her work and one year after joining the Respondent she was promoted to senior accounts receivable process specialist.

She enquired if there was to be a pay increase with the promotion and was told “it would be soon”. She discovered that another colleague who obtained a promotion around the same time had obtained an immediate pay increase.   She was curious as to why she was treated differently and set about researching same on the Respondent’s intranet.

By February 2014 she had not received any information regarding her promotional pay increase and approached her manager for an update. She was led to believe she would receive a pay increase. She went through a further assessment. In April 2014 a meeting was scheduled to discuss a potential bonus plan for 2014 performance to be paid out in January 2015 with a potential 10% in January 2016.

The Complainant was not happy with this. She felt extremely disappointed and let down. She felt she was entitled to recognition for the work already accomplished in 2013. She was disappointed and annoyed with her manager. She felt he was inexperienced in the area and she suffered as a result.

She went to see her second line manager who was the senior director. The Respondent operated an open-door policy. At that meeting she was advised that the 10% increase was approved.

The Complainant felt that her manager had issues with the promotion and pay increase because she may have been earning more than him at that stage.

By July 2014 there was no change in her salary and she emailed her second line manager. She was advised to contact the finance manager. She did and was advised that she was on a high salary in the current climate and a 10% increase would be above average.  

The following month her line manager emailed her to say there would be no change in the arrangement as advised by the finance manager. She wasn’t happy with this. At this stage, she felt she no longer had trust in her manager and found it very difficult to work with him. The Complainant gave evidence that she had frequent interpersonal conflicts and felt that she was suffering from work related stress. She felt she was not getting the support she needed from the Respondent. She felt it was their responsibility to deal with it. She was absent from work higher than she ever did before. She had flu, ear infections, stomach bugs, head colds. She felt isolated.

She applied for a team leader position but was unsuccessful.

She was crying during meetings and was very unhappy going to work.

In May 2015, she had a meeting regarding her pay/bonus review. Her manager advised that although there was a potential for her to get a 10% bonus in 2016, it would only be set at 5% as she had not contributed enough to additional projects.

The Complainant felt angry and upset.   She collected her things and left the building.

She was certified on sick leave for the following six months. She received her full pay during this period of sick leave. She went to see the company doctor as requested and attended meetings with HR and the finance director during her sick leave. This comprised seven meetings.

She didn’t feel in a fit state to attend the meetings but forced herself to go because she felt that if she didn’t, she would jeopardise her job. She was not happy with how her promotion was handled and she felt there were broken promises which all let to a loss of trust and confidence. She felt it would be very difficult to work with her line manager again. The meetings while she was on sick leave exacerbated her low esteem and self-worth.

She was deemed fit to go back to work by the company doctor at the end of the six-month period in November 2015.  

She was invited to a return to work meeting. Her line manager was to also attend. She was very anxious about this. It was the first time she had met her line manager since July 2015. The HR and finance managers were also in attendance.   Their whole mantra was what could they do to get her back to work as soon as possible. She felt pressured and that nothing was going to change.

She asked if she could return to work reporting to a different manager. This was declined. At that meeting she advised that she would think about whether she would go back to work at all. She felt that the others in attendance were pressurising her for her resignation.   She was given time to think about it.  

In January 2016, she telephoned the HR manager to advise that she would not be returning to her current position under her line manager. She felt she had no other alternative but to send her letter of resignation in the post as requested. She was not invited to any further meetings on foot of her resignation.

The Respondent’s position was that the Complainant resigned her employment when her sick pay expired and she was certified as fit to return to work. They made every effort to work with the Complainant over a number of months to bring her back to the workplace, but the Complainant chose not to return and chose not to apply for other roles within the company which were available at the time.

The Complainant had left work on the 13^th of May 2015. She had been absent due to illness for six weeks before HR checked in with her and asked her to attend the company doctor. This was normal company practice. The Complainant’s own counsellor and company doctor both recommended that the Respondent meet with the Complainant to actively try to resolve her issues in the workplace. HR and the Complainant’s manager put a process in place to meet with the Complainant to tease out the issues with her. They took actions and queries from the meetings and sought to get answers from the business on the Complainant’s behalf.

Throughout this period the Complainant wrote to HR and thanked them for their support and their efforts to resolve the situation. She asked for a time line for next steps to help resolve her issues. HR sought to get the answers from the business and arrange the meetings as soon as possible to assist the Complainant.

As the company doctor recommended follow up consultation, these were arranged with the agreement of the Complainant.

The company doctor advised that the Complainant was fit to return to work in November 2015 and in December 2015 advised that it would be beneficial for the Complainant to return to work.

A support meeting was held on the 7^th of December 2015 with the HR manager and the finance manager.   At the end of the meeting it was agreed to hold a back to work meeting with the Complainant’s manager to agree steps to return to work.

At the back to work meeting the Complainant resigned. The Respondent asked her to consider her decision over Christmas and come back to them in January.

HR emailed the Complainant in January 2016 and sent her a list of all open roles in the business. The Complainant told the HR director that she did not want to meet with the company and would post her resignation.   HR wrote to the Complainant on the 3^rd of February 2016 to express regret at her resignation and failure to consider any other role or meet the company to discuss a resolution.  

The Complainant emailed back and thanked the HR for her support over the last number of months and stated that “a parting of ways is in everyone’s best interest”.

The line manager, finance manager, and HR manager gave evidence at the hearing. Their evidence was that in the meetings, they tried to understand the Complainant’s position:

1. Her pay – They felt she was treated fairly
2. The timeliness of communications –a process had to be gone through with the head office which was adhered to.
3. Interaction with her line manager – the Complainant no longer wanted to report to him, however this was impossible to change. The Company did not have a policy of moving staff from one department to another.

They investigated the Complainant’s issues and went to great lengths to show the basis of their position to her.   They knew she wasn’t happy, but thought they had reached a resolution during the meetings.

They took the emails from the Complainant at face value. At all stages, the Respondent was trying to work out a resolution with the Complainant to get her back to work.

The Complainant submitted that under the contract test for constructive dismissal that the non-payment of the promotional pay increase was a fundamental breach of her terms of employment. She was not happy to have this converted to a bonus scheme. When the bonus scheme was not as per as she was initially advised, all trust and confidence was shattered with the Respondent and she could no longer continue in her workplace. This was never resolved and she felt she had no choice but to leave her employment.

Under the reasonableness test, she submitted that she followed all procedures available to her including the open door and the grievance procedure. The Respondent did not act reasonably in dealing with her grievances.   She was left without resolution to her complaints for many months. When the complaints were dealt with, it was not to her satisfaction.   She was increasingly isolated and unsupported.

I have considered all of the evidence both oral and written which was substantial. Looking at how the dispute came about and the actions of both the Complainant and the Respondent over the entire period, I cannot agree that what happened was a fundamental breach of the Complainant’s terms and conditions of employment to the extent that she could no longer continue in the workplace.

I find that the evidence of the Respondent was more credible and was corroborated with the information the Complainant found herself on the company intranet regarding the bonus processes and the emails from the Complainant during her period of sick leave.  

Not every breach of contract will give rise to repudiation of contract.

I further find that the Complainant has not met the requisite threshold as regards the reasonableness test.   Her resignation after the review meetings and not applying for alternative jobs in the organisation could not be regarded as reasonable. She did not return to work after her period of sick leave to see if her manager’s behaviour towards her was going to continue as she believed.    

Overall, I find that the Respondent did respond to the concerns and grievances made by the Complainant both at manager level and by HR and that there was a genuine attempt by management and HR to deal with the concerns raised.

The claim of construction dismissal does not succeed.

Constructive dismissal.   Bonus scheme