Complainant

Respondent

Anonymised Parties

A Finance Assistant

An IT security firm

Representatives

None

None

Act

Complaint Reference No.

Date of Receipt

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

CA-00007659-001

17/10/2016

The complainant commenced employment on the 13th July 2015 and this ended on the 30th September 2016. Her latter role was as an Operations Assistant. Her salary was €19,200 plus a completion bonus for the new role of €3,000. She claims that she was constructively dismissed from her employment. The respondent denies the claim.

In the complaint form, the complainant outlines that she was bullied by her new boss and following a mediation process, she and the line manager were to have one-to-one meetings. She describes the line manager as being aggressive and abrasive. Not only had the complainant to work closely with the line manager but she now also attended one-to-one meetings in the board room. The complainant broke down in the mediation and asked for her old job back. She had been junior finance assistant but stepped into the accounts payable role when a colleague went on maternity leave. She later became upset in the staff room after an interaction with the line manager about training in her replacement. The respondent did not do enough to resolve her complaint and became defensive when the complainant raised the stress these events were causing her.

At the adjudication, the complainant outlined that she commenced working for the respondent as a receptionist. She then moved to the junior finance assistant role in November 2015. She was also doing a bookkeeping course relating to a named IT package. She later moved to an accounts payable position, available when a colleague went on maternity leave. She submitted a grievance complaint on the 6th July 2016 regarding how she was being treated by her new line manager. The manager was aggressive and abrasive, in particular how she stood over her. The complainant said that the line manager treated her differently to others. She made this complaint one month after starting to work with this new line manager. The complainant always loved working for the respondent and had no other problems. The complainant entered a mediation process with the line manager and others. She commented that the line manager would say that she was doing things wrong but would never tell her what.

The complainant said that she went to work every day in tears. The line manager had made false complaints during the mediation, and the complainant felt intimidated by her, especially at the one-to-one meetings. The line manager would speak over her and would not allow her speak. The complainant reported this to the HR Manager and told her that she was intimidated. She was also belittled in front of colleagues. The complainant said that the line manager was saying that she made too many mistakes, but could not tell her what they were. In respect of the second mediation meeting, the complainant said that she sat crying at the meeting and asked to go back to her old role. The complainant raised the line manager’s abrasive approach and that she had become angry when the complainant described her as “barking” orders at her. The line manager would undermine her work and the complainant raised this in the mediation. As the mediation showed there would be no resolution, the complainant began looking for other jobs. She emailed the HR Manager with a list of issues which she described as causing unnecessary stress.

The complainant stated that the details of the Employment Assistance Programme had only been supplied to her when she sent in the sick certificate. The complainant sent the email to the HR Manager on the day she said she wanted an easy life. This occurred on the 13th September 2016. The HR Manager asked her how the respondent should deal with the issues in the email. The complainant said that she had only been provided with a job description of the role at the start of August 2016. The complainant said that following her data access request, she was provided with emails of the line manager of early June 2016, but she had not been provided with later emails for example the line manager’s “bombarding” the complainant with meeting requests.

In respect of an incident at work, the complainant described a telephone call where she was not able to be put through to an IT training company. She had said “stupid phone” but the colleague putting the call through to her had thought she had called him stupid. She denied this but the colleague had shouted at her. The complainant raised this with the Finance Director and no further action was taken. In respect of her phone, the complainant said that it was her understanding that employees could take over phone numbers and she had sought to take over her number. There were emails between her, the HR Manager and the Finance Director in relation to this.

In written submissions, the respondent sets out the test for constructive dismissal and that the burden of proof rests with the employee. It refers to the contract and reasonableness tests for constructive dismissal, referring to the cases of Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332, Berber v Dunnes Stores [2009] E.L.R. 61, An Employer v A Worker (EED0410) and Duane v Masonry Fixing Services Ltd (UD 35/2013). The respondent submits that the issues raised by the complainant were dealt with in a timely and efficient manner. The complainant had not indicated that the steps agreed at the second mediation process were not working. She did not avail of all internal processes and left to take up alternative employment. The complainant was not justified in resigning as the respondent had not breached a fundamental term of her employment and nor had the respondent acted so unreasonably that she had no option but to resign.

In submissions, the respondent outlines that the complainant joined the respondent as a part-time receptionist in July 2015 and in November 2015, took up the junior finance assistant role on a permanent contract. The complainant was provided with the respondent’s bullying and harassment policy and with training. In June 2016, the complainant transferred to the Operations Assistant role. The complainant’s new role had been a promotion.

The complainant made a complaint of bullying against her line manager on the 5th July 2016 and agreed that it would be dealt with informally through mediation. The outcome of the mediation meetings was that the complainant and the line manager would attend one-to-one meetings. The complainant never indicated that she was unhappy with the meetings and if she had done so, the respondent would have sought an alternative resolution. The respondent’s Employee Assistance Programme was available to the complainant. She resigned on the 5th September 2016 to take up other employment. The first time the respondent knew of any issue of workplace stress was the doctor’s letter submitted by the complainant on the 13th September 2016. It asked the complainant what action she wished the respondent to take and she replied that she wanted an easier life and did not want any action to take place. The respondent could not arrange for the complainant to be examined by its doctor. The respondent agreed that the complainant could finish up on the 23rd September 2016 and was only required to do a limited handover. The complainant was paid in lieu of notice.

The complainant did not submit a formal grievance and the respondent never had the opportunity to formally investigate the complaint. The complainant’s informal complaint was dealt with in a timely manner. The final mediation session took place on the 16th August 2016 and the complainant resigned on the 5th September 2016. The complainant did not complain about the outcome of the mediation process and did not exhaust all internal procedures. The complainant was not justified in resigning.

The respondent outlined that the complainant’s grievance was dealt with under step one and step two of the Dignity at Work policy. No investigation had been carried out. This was addressed by the informal process and there was no written submission from the complainant’s line manager. The line manager had said that there were difficulties with the complainant’s behaviour. Both parties agreed to attend mediation and the HR Manager was a trained mediator. There had been two sessions of mediation on the 11th July and the 16th August 2016. At the second meeting, the parties agreed to use weekly meetings and they seemed to work through the issues. Both agreed to the one-to-one process and neither raised an issue after the second mediation. Three weeks later, the respondent received the complainant’s resignation letter, dated the 5th September 2016. After she resigned, the complainant submitted a sick certificate on the 13th September 2016 for work-related stress leave. The respondent facilitated the complainant by not requiring her to work her notice. The complainant said that she wanted an easier life. The respondent had no record of an exit interview with the complainant. The complainant had said that the process had failed her. The respondent stated that it could have moved to the formal process and the grievance procedure.

The HR Manager said that at the exit interview on the 23rd September 2016 she knew that the mediation had not worked. She said that between the 16th August and the 23rd September, the only contact from the complainant had been the letter of resignation. It had been appropriate to provide mediation even though they were not peers. The respondent had not acted in such a way as to amount to constructive dismissal. It was the respondent’s sense that the parties had contributed to the level of conflict between them. The respondent confirmed that there had been a complaint from a different colleague about the line manager and the line manager no longer worked for the respondent. The respondent submitted that there was an Employee Assistance Programme in place and all employees were advised of this.

The Finance Director outlined that she brought in the line manager. She got on with the complainant and was available to address issues. There had been a lot of personalisation on both sides and the complainant had struggled in the new role. There had been additional scrutiny on the complainant because of the different nature of the role. There were errors in the complainant’s work. The Finance Director offered more training and confirmed that a performance improvement plan had not been engaged.

The HR Manager confirmed that the complainant had been crying at the mediation meeting. She had never seen the printed-out email. Mediation had stopped by the 13th September 2016 and the complainant had said she wanted an easier life. The HR Manager did not suggest a third mediation meeting. She said that the line manager had asked for the Dignity at Work policy a week before the complainant’s complaint. In respect of the complainant’s performance at work, the issues were set out in the email of the 12th September 2016. Accounts payable was an important, crucial role and issues might only come out later. The Finance Director had asked the complainant to identify training needs. The respondent did not accept that there had been a dispute between the line manager and the new assistant.

The respondent submitted the test for constructive dismissal is a high bar and that the complainant had not met this test. The respondent had supplied all the information sought in the data access request and such a request was not part of this process. It was the respondent’s belief that it did everything it could, referring to the email of the 19th May 2016.

In respect of the mobile phone, the complainant had a mobile phone that she had promised to return it on the 26th September 2016. She kept the phone. The complainant offered to transfer the phone to her on the 7th December 2016 and offered to pay the outstanding bill. This was only paid on the 22nd December 2016.

The complainant commenced working with the respondent in July 2015. She worked in three roles. She first worked as a receptionist and then progressed in November 2015 to a junior finance assistant role. She received a positive assessment on the 17th July 2015 of her role as a receptionist, and a second positive assessment of the 23rd November 2015, relating to the junior finance assistant role. She completed a probationary period in this role on the 2nd June 2016. On this same date, the respondent wrote to the complainant setting out the terms of her Operations Assistant role, including a completion bonus of €3,000. This was a role undertaken by the complainant during the maternity leave of a colleague. The complainant submits the job specification for the Operations Assistant role and says that she only received this in August, following her conversation with the Finance Director.

In the complainant’s informal complaint, she raises how the line manager speaks to her and treats her. The line manager is described as “nit-picking” and as treating the complainant differently to others. The complainant says that she no longer enjoys working for the respondent. She states that the line manager does not speak to her and does not respond to her questions. The line manager is also said to stand over her and to excessively monitor her work.

The respondent submitted an email of the 19th May 2016, which is a complaint from a colleague about how the complainant treated him in relation to a telephone call. The email is addressed to the line manager. I note that there does not appear to be a follow-up or any disciplinary action taken regarding this issue.

The complainant’s letter of resignation of the 5th September 2016 does not refer to the issue with the line manager. It refers to thoroughly enjoying being part of the respondent and that it was with deepest regret that she is leaving. She was thankful for the opportunities and that it was a “truly wonderful” place to work. The complainant provides an invoice for 15 sessions of counselling/psychotherapy as well as medical certificates indicating that she suffers from a stress related condition. The complainant commenced alternative employment on the 3rd October 2016.

Having reviewed the evidence and submissions of the parties, I make the following findings and comments. It is striking that the complainant was settled in the respondent workplace. She started as a receptionist and moved to a finance-related role. She received positive appraisals and progressed in the workplace. She was engaged as a Junior Finance Assistant and then as an Operations Assistant, covering a colleague’s maternity leave. Things appear to have gone awry following this change. I note the May 2016 complaint in relation to the phone call, but I also note that no action followed this interchange with the colleague. I note that complainant’s detailed complaints about the actions of the line manager. This line manager did not attend the adjudication. I appreciate the steps taken by the HR Manager to seek to mediate this matter. What is striking about this case is that at the second mediation session, it was accepted that the complainant was crying during the session and asked for her old job back. Even if the complainant did not follow up after this second mediation session, I note that she was expected to continue with one-to-one sessions with her line manager, with no prospect that the line manager’s conduct would change. While the complainant submitted her resignation shortly after this session, I accept that she felt that she had no other choice but to look for alternative employment. I also accept that the respondent put forward mediation as a bona fide way of resolving this dispute. However, given the way the second mediation session panned out, it cannot be said to be a viable or sustainable outcome to mediation.

For this reason, I find that the complaint of unfair dismissal is well founded. I apply the authority of Berber v Dunnes Stores [2009] E.L.R. 61, where the Supreme Court set out the following test for a breach of the term of mutual trust and confidence in the contract of employment:

“1. The test is objective.2. The test requires that the conduct of both employer and employee be considered.3. The conduct of the parties as a whole and the accumulative effect must be looked at.4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

While informal or mediated outcomes are, in many cases, perfectly appropriate, there are shortcomings in this instance. In this case, the complainant faced the situation where she had participated in two mediation sessions that ended with the complainant crying and the outcome being ongoing one-to-one meetings. The complainant’s evidence was that the line manager criticised her performance during the mediation. The complainant was to be left to one-to-one meetings with her line manager, with no finding of whether the bullying complaint was well founded or some acknowledgement on the part of the line manager of the complainant’s concerns. I find that this satisfies the test in Berber v Dunnes Stores.

In assessing redress, I note that the complainant commenced alternative employment on the 3rd October 2016. In the circumstances, I make an award that is just and equitable pursuant to section 7(1)(c)(ii) of the Unfair Dismissals Act. I award redress of €1,100.

CA-00007659-001

I find that the complaint made pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay redress to the complainant of €1,100.

Unfair Dismissals Act

Berber v Dunnes Stores [2009] E.L.R. 61