Complainant

Respondent

Anonymised Parties

A Sandwich Maker

A Retail Sandwich Shop

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-00016750-001

11/01/2018

Constructive Dismissal complaint for failure by management to deal with a bullying complaint

The Complainant started work as a sandwich maker in 2016. The Respondent is a sandwich business owned by Owner A and B, directors of the Respondent.

The Complainant resigned her position on 27 December 2017.

In early 2017 the Complainant raised an issue with Owner A, that during her shifts, her manager was bullying her by leaving the café in a mess and blaming her for it. After a number of complaints made by the Complainant, Owner A arrived into the café one evening when the manager had been on duty and had left the place in a mess. That manager was dismissed in September 2017, however her fiancé, (the Co-worker) remained working for the Respondent.

The Co-worker’s attitude, which until that time had been good, thereafter changed towards the Complainant, which until that time had been good. He appeared to blame the Complainant for the dismissal of his fiancé and he started criticising and blaming the Complainant for her poor work and for taking excessive sick leave. He too started leaving the place in a mess and blamed the Complainant for this. When his fiancé had been dismissed he posted a message on Facebook “what goes around, comes around.” The Complainant took this to refer to herself and she felt threatened by this.

She told one of the owners who said that their argument was a private matter and that there was nothing that management could do about that. From then onward the Co-worker refused to engage with the Complainant, which made busy shifts – during which they worked together – very difficult. The Complainant found this very stressful. Around this time the Complainant developed a stomach ulcer (helicobacter pylori) and required to take off sick days because of this. This was not received well by the Respondent management nor the Co-worker who had to cover for her shifts. The Complainant complained to Owner A about her Co-worker’s attitude towards her.

Owner A said that it was a personal dislike between them and that she had no business intervening. The Complainant felt isolated and under stress. This stress worsened her stomach condition. After Christmas 2017 on 27 December the Complainant was rostered for work from 11am. She arrived into work and started work. Later on she found a note left by her Co-worker. The note was sarcastic and critical in its tone. It read as follows:

“To Niamh

Thank you for taking note of the few little things (some of which were done) you spotted not done on Friday evening. A person can only do so much by themselves. Friday was an extremely busy day but you wouldn’t know as you were off sick (AGAIN)!!! Perhaps we should bring up your out-of-date sauce bottles and the fact that you don’t put in waste almost ever on your shift! All of which I don’t cry about. If there was a little more teamwork and care given, this place would be a better place to work, rather than nit picking stupid things. People in glass houses shouldn’t throw stones. And do you ever stop to think how you fuck up your fellow employees days off with all the days you phone in sick. I’ve never seen the likes of it to be honest and I’ve no idea how you’re getting away with it either.”

On reading this note the Complainant immediately phoned Owner A and said that her Co-worker had left her an aggressive note and that she wanted Owner A to reprimand him on it. She explained that this was now evidence of the way that the Co-worker had been treating her all along. That this was no way to treat a colleague. Owner A accepted that she had seen the note but that she was not going to get involved that it was a private matter between the two of them. The Complainant told her that she, Owner A was the owner and that it had everything to do with her. The conversation ended. The Complainant went back to work but over the course of the next half hour she became incensed at the fact that she could be exposed to this aggression within her workplace and that the Owner knew about and would not do anything about it. The Complainant texted the Owner A and said that she was leaving as she couldn’t work under these conditions. A series of texts followed whereby Owner A told her she must work as scheduled. The Complainant stayed until rush hour (lunchtime) was over and then texted Owner A at 2.45 pm to ask if she had got a replacement as she was leaving. The response to this was:

“What’s wrong with you? Nobody treat you that way, everyone covering for you when you are off sick every month, you have to stay for your shift, no one can cover you today, just do your work, enough bitching, try to concentrate on your work I’ve been nice to you all the time. (Co-worker) dislikes do not relate to my business and he will be told to keep his personal opinions away.”

The Complainant then texted Owner A to say that she would be leaving in a half an hour even if no replacement worker showed up. The Complainant accepts that she walked off the job but said that the management’s consistently refused to do anything about this bullying behaviour. Their decision to ignore her complaint of bullying, fundamentally broke any confidence and trust between them.

Due to the untimely death of her boyfriend in January 2018 death the Complainant did not seek alternative work until May 2018 and has been in full time education since the start of September 2018. She accepts that her attempts to seek work stopped after she found out that she would be starting full time education in September. Her loss is therefore limited to 2 months. She mitigated her loss by increasing her hours in a part-time pub job, that she had always done. Her loss for two months is €1036.00.

Owner A was not available to give evidence on either day of this hearing. On day 1 she was not available. On day 2 Owner said that Owner A was recovering from an appendectomy however no application for an adjournment of the case was made by the WRC in advance of day 2. The matter therefore proceeded on Day 2.

Owner B gave the following evidence:

The Complainant had been a good employee at the start but was not a reliable employee towards the end of her employment. He accepted that the work could be busy at rush hour times but not at other times. He did not accept that there were too few staff. He said that the Complainant’s work was untidy and she used bad language in front of customers.

The main problem was that the Complainant missed 20 days due to illness in 2017. Some of this was due to late nights when she had been working in the pub or out socialising. The absences tended to occur on Mondays. Despite this the Complainant’s shift hours were covered by other staff; either Owner A or the Co-worker. She did not seem to appreciate the difficulty that she caused by these absences.

Her interpersonal difficulty with the Co Worker seemed to stem from her inter personal difficulty with the previous manager who had been dismissed. An employer cannot intervene with every falling out that occurs between staff.

The Complainant left without any or any proper warning on 27 December 2017. She walked off the job and left the shop short staffed. She completely over reacted to the note that had been left by her Co Worker. She did not warn the Respondent that she intended to leave her employment before she did so and this defeats a case for Constructive Dismissal. She walked off the job and did not give any opportunity for the Respondent to deal with her complaint, which was not valid in any event.

The question to be answered in this constructive dismissal case is did the Complainant give the Respondent enough opportunity to deal with her complaint of bullying against her co-worker? Was there evidence of bullying/harassment?

Based on the evidence of the Complainant which has not been controverted by the Respondent witness who failed to deal with her complaint, she considered her complaint to be serious. Serious enough to warrant at least some form of sanction. Bullying complaints should not be ignored and it is folly for an Employer to do so. What is aggressive to one person may not be to another. Therefore it is important to listen to the complaint.

The management of the employees in this business appears to be at arm’s length from the inter personal difficulties between the staff and while this this true for minor fallings out, persistent criticism and aggression from one employee to another, when it is brought to the attention of an Employer, should not be ignored.

There can be no doubt that the practice of leaving aggressive notes from one employee to another is not a practice to which a blind eye should be given by an Employer. The uncontroverted evidence of the Complainant was that from September 2017 the Co-worker had treated her disdainfully. He criticised her and her work and he criticised the sick leave that she took. Owner B said in evidence that he agreed with this criticism by the Co-worker of the Complainant’s work and he considered the note to be a truthful account of what they all thought of the Complainant.

If it was the case that the Respondent had a difficulty with the work of the Complainant, they could have reprimanded her or commenced disciplinary action against her. They did neither. This “vacuum” of in action was then filled by the Co-worker who was neither the Complainant’s line manager nor had no right to reprimand the Complainant at all, quite apart from the aggressive tone that he did. It is surprising that the Respondent did not seek to condemn the tone or the language that was used in the note. Owner B in fact concurred with both and thought the note to be an appropriate and normal communication between employees.

Part of the responsibilities of an employer is to manage staff and if a bullying complaint is made, this should not be ignored or brushed aside. This the Respondent failed to do.

I consider the actions of the Respondent in failing to put in place a process whereby a grievance could be made and heard properly, resulted in the Complainant coming to the reasonable belief that her employment could no longer continue. I find this complaint of constructive dismissal to be well founded.

I award the Complainant her loss of €1036.00 in respect of her complaint.