ADJ-00016407

Complainant

Respondent

Anonymised Parties

A cleaning Operative

A Contract Cleaning Company

Representatives

John Barry, Management Support Services (Ireland) Ltd

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-00021300-001

23/08/2018

The Complainant resigned her position on the 26th of July 2018. At that time, the Complainant had been out on sick leave since March of 2016. The Complainant says her reasons for resigning related to her having been bullied and harassed by her Supervisor which behaviour led to the Complainant being disciplined in January 2016. The Complainant maintained that this treatment was unfair and that she never had the support of management in this regard.

The Complainant believes that she was treated very badly be her Employers and was entitled to be compensated for her loss of earnings arising out of the resignation which happened in July of 2018 (four months ago). The Complainant gave no evidence of having applied for alternative employment. The Complainant had no interest in returning to the workplace.

The Respondent says that it has at all times operated within the parameters of its procedures. As soon as it knew that the Complainant was unhappy with her direct Supervisor the Employer attempted to separate out the parties as the workplace allows for the movement through different Contracts across the city. The Respondent was somewhat limited in what it could do as the complainant was out on certified sick leave since March of 2016 (2 years and 8 months). At all times the Respondent says it tried to get the Complainant to come back to the workplace and even on her own terms. Their case must be that the Complainant did not exhaust the options it put forward both at workplace meetings and through interparty correspondence.

I have carefully listened to the evidence adduced in the course of this hearing. The Complainant was working with the Respondent Contract Cleaning Company since 2012 and it is common case that her standard of work had historically been satisfactory. Towards the end of 2015, a number of complaints were made by a client about the standard of cleaning being done and the Complainant’s own supervisor stated that she had been having difficulty finding the Complainant on site at specific allocated times. The Complainant was called in for a meeting and this meeting took place in January 2016. It is noted that the Complainant took issue with the manner in which she was brought to the meeting and that she was advised that she would be suspended if she did not give a date and time for a meeting. The Complainant vehemently defended her position and did not accept that her work was below par or that she was not in attendance when she should be. The Complainant stated that her Supervisor had miscommunicated information and had scheduled her incorrectly.

Despite the foregoing the Complainant was issued with a First Warning (January 14th, 2016) and told to communicate with her Supervisor, stick to her Schedules and maintain a High Standard. A right to Appeal this sanction was given. The Appeal was not availed of and the Complainant went back to work in the usual way. The Complainant did write to her Employer on the 29th of January to again explain what had happened but no further investigation was launched or deemed necessary.

Five or six weeks later, the Complainant contacted her Employer regarding headaches she had been having off and on and explaining that she must stay out of work by direction of her physician. Medical Certificates follow in the usual way. The Respondent stated that the Complainant was a loss to them as she was a generally a good employee and they were in constant need of good and trustworthy staff to place in sometimes sensitive sites.

Two and a half months later, the Complainant is asked to come into a meeting for the purpose of updating her Employer as to her general condition and the likelihood of her returning to work in the foreseeable future. There is no note of this meeting so it is to be presumed that it was intended to be a routine one. However, both parties agree that in the course of this meeting the Complainant made allegations of bullying and harassment as against her immediate supervisor and most of what the Complainant appeared to relate to the period of time immediately preceding the Disciplinary process. The Complainant stated that her absence from work was as a result of work related stress.

The Company says that it wrote to the Complainant in terms of a letter opened to me and dated the 7th of June 2016 and which letter invites the Complainant to formally invoke the grievance process if that is what she is minded to do. In the meantime, the Complainant is invited to return to the workplace as she has indicated she is ready to do so. The Respondent indicated a willingness to find the Complainant alternative and similar employment under another Supervisor should she so wish. I note that the Complainant says she did not get this letter. It is presumably possible that this letter got lost in the post.

The next communication between the parties is in September of 2016 – albeit I am assuming the Complainant has continued to submit Sick certificates. In September, the Complainant sends a long email to Mr. SOR who has been dealing with the Complainant all along. Again, this email addresses the historical issues that gave rise to a disciplinary sanction in January of that year. The email also states that the Complainant had been happy at the place she had been working but that she understood that she had been replaced there. This email also accuses Mr. SOR of being disrespectful of her. In response, Mr. SOR invites the Complainant to meet with him though I note his communication does lean towards finding a solution rather than investigating the problem. The parties meet on the 3rd of October 2018. There is a hand-written note of the meeting and it is clear from that note that the Complainant believes she has been pushed out of her place of work and was being blamed in the wrong for matters that ultimately gave rise to her being disciplined. This is now some 9 months after an entitlement to Appeal that sanction has expired. The Complainant maintains she was being bullied by her supervisor. Some of the meeting appears to have been taken up with the Complainant stating that she will either take this matter further or be looking for her Redundancy. I was advised no redundancy programme was in existence at that time.

In the aftermath of that meeting the Complainant was again written to by Mr. SOR and the Complainant accepts that she got a copy of this letter dated the 10th of October 2016. The letter seeks to assure the Complainant that she has not been replaced in her particular position and that her position awaits her if she is ready to come back to work. The Complainant was reminded that the offers contained in the letter of June were extant i.e. alternative Supervisor, new schedules etc. I would accept that this letter clarifies that the Complainant has a position to return to work on suitable terms as and when she is ready to return.

The Complainant left her position open though remained out on sick leave and I understand was in receipt of illness benefit up until October of 2017. The Complainant brought a complaint before the WRC and on Appeal to the Labour Court under the Industrial Relations legislation. It is quite clear that in the course of these hearings the Complainant was given assurances concerning the availability of work, the appointment of a new Supervisor and the return to her favoured place of work. Despite this, the Complainant indicated that she intended resigning and the recommendation which issued at both Adjudicator and Labour Court level (on the 5th of April 2018 and the 17th of July 2018 respectively) was that the Complainant should receive €1,000.00 if she decided to follow through on the resignation. The Complainant did in fact resign her position on the 26th of July 2018 though I note she refused to take receipt of the cheque for €1,000.00 sent to her preferring instead to initiate proceedings under the Unfair Dismissals legislation. I note that the period of one year and 9 months passed between the date of the letter of the 10th of October 2016 being sent to the Complainant, and the Complainant’s resignation with any number of occasions in the interim where (the Respondent stated) wherein she was afforded every opportunity to have her grievances vented and her work restored.

Before proceeding to my conclusions, I am obliged to reference a preliminary point made by the Respondent’s representative who questioned my entitlement to hear this case in circumstances where the Complainant had already had most of these issues vented before the WRC and the Labour Court earlier this year. I understood where the Respondents representative was coming from, as this was his clients fourth or fifth time before these dispute resolution bodies. However, I am of the view that the Complainant only triggered her entitlement to bring a claim for Unfair Dismissal when she resigned her position and bringing claims for dispute resolution under the Industrial Relations legislation cannot have the effect of precluding a Complainant from exercising her entitlement to trigger the protections afforded by the Unfair Dismissal legislation once a termination has occurred.

Having considered all the evidence including the oral provided by the Complainant and the company Director I cannot find that the Employer’s conduct was such that the Complainant was forced to terminate her employment. It is clear to me that the Complainant could have returned to the workplace at any time in the last two years enjoying terms and conditions which she could have personally dictated. For reasons unexplained, the Complainant overreacted to a verbal warning which was given after a disciplinary process and which was never appealed. The consequence of this sanction was a series of Grievances raised by the Complainant against her direct Supervisor. All attempts to resolve this inter personal relationship were rejected by the Complainant for no good reason.

The Complainant was not forced to terminate her Contract of Employment in circumstances which, because of the conduct of the Employer, it was reasonable for the Employee to terminate her employment (as defined in Section1 of the Unfair Dismissals Act 1997).

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00021300-001 

The Complaint herein fails.